Appendix: Government response
Letter from James Brokenshire MP, Minister for
Immigration and Security, 12 February 2015
I am grateful to the Home Affairs Select Committee
for its report on the Regulation of Investigatory Powers Act 2000
(RIPA) which was published on 6 December. I apologise for the
delay in responding, I hope you understand the Government wanted
to wait for the Interception of Communications Commissioner to
report on his inquiry into police accessing the communications
data of journalists under RIPA. The following will address your
report's specific conclusions and recommendations.
James Brokenshire MP
February 2015
Government response
Conclusion/Recommendation 1
Section 94 of the Telecommunications Act 1984
gives extensive powers to the Secretary of State to take actions
'in the interests of national security or relations with the government
of a country or territory outside the United Kingdom'. There is
no public disclosure of how this is used, and none of our witnesses
has been aware of anyone who considers it their role to scrutinise
it or have any oversight powers. We believe this should be reviewed,
and one of the Commissioners specifically tasked with oversight
of this power, and for them to be given the information and access
needed to fulfil this role. We also recommend that the government
publish on an annual basis the number of times this power is used.
We further suggest that the Intelligence and Security Committee
conduct an inquiry into the use of this power. (Paragraph 15)
Government response
It has been the policy of successive Governments
not to comment on sensitive national security issues and to neither
confirm nor deny the existence (or otherwise) of intelligence
techniques or capabilities. The Telecommunications Act 1984 allows
for Section 94 directions to be kept secret. It may be necessary
to keep a direction secret because revealing its existence would
damage national security.
The Government, however, has been very clear that
the Security and Intelligence Agencies must, and do, act in accordance
with the law. This point has been publically recognised by the
Intelligence and Security Committee of Parliament (ISC).
The Government is satisfied that the Security and
Intelligence Agencies are properly held to account by the ISC,
the Investigatory Powers Tribunal and the Commissioners.
The Prime Minister may ask the Interception of Communications
Commissioner and the Intelligence Services Commissioners to provide
oversight of a range of Security and Intelligence Agencies' activity
on a non-statutory basis. However, in some circumstances, this
may be secret where it would damage national security were its
existence to be made public.
As to whether the ISC should look into the use of
Section 94, it is for the ISC to decide how it exercises its oversight
functions. Since the Justice and Security Act 2013, the ISC has
the powers, remit and resources to undertake the inquiries it
deems necessary.
Conclusion/Recommendation 2
We urge forces to communicate openly and efficiently
with the Commissioner regarding the information they give him
about their work. IOCCO should be given further resources to carry
out its job in an effective and timely manner, most notably their
inquiry into the use of RIPA powers regarding journalistic sources.
(Paragraph 22)
Government response
The Government is committed to ensuring the Interception
of Communications Commissioner has the resources he needs to fulfil
his responsibilities. As he made clear in his Annual Report published
last summer and in evidence to your Committee, their resources
have been increased considerably and they do not currently consider
that they need more. We will continue to consider carefully any
request for resources that the Commissioner makes to the Government.
Conclusion/Recommendation 3
We note Sir Paul's recommendation to the Home
Office concerning the need for improvements to the statistical
requirements in the RIPA Code of Practice. It is vital that the
statistical requirements are enhanced, so that the public can
be better informed about the use which public authorities make
of communications data. (Paragraph 26)
Government response
The Government agree on the need to improve the statistics
on public authorities' acquisition of communications data and
welcome the Commissioner's consideration of his. We have worked
with the Commissioner's office to build on the current statistics
that are collected so that a more reliable, consistent and transparent
picture of the acquisition of communications data can be presented.
These additional requirements have been included in the draft
updated Acquisition and Disclosure of Communications Data Code
of Practice.
Conclusion/Recommendation 4
The Home Office should hold a full public consultation
on an amended RIPA Code of Practice, and any updated advice should
contain special provisions for dealing with privileged information,
such as journalistic material and material subject to legal privilege.
(Paragraph 28)
Government response
The draft updated Acquisition and Disclosure of Communications
Data Code of Practice underwent public consultation between 9
December 2014 and 20 January 2015. It includes a section concerning
giving additional consideration to the level of intrusion when
considering whether to acquire communications data involving professionals
who handle privileged or otherwise confidential material, such
as journalists.
The Interception of Communications Commissioner conducted
an inquiry into police accessing the communications data of journalists
under RIPA. During
the debate at Committee Stage in the House of Commons on the Counter
Terrorism and Security Bill, the Government committed to reflecting,
where appropriate, the Commissioner's recommendations in the revised
Acquisition and Disclosure Code of Practice, prior to laying it
before Parliament. The Commissioner reported on 4 February and
made two recommendations:
1. Judicial authorisation must be obtained in cases
where communications data is sought to determine the source of
journalistic information.
2. Where communications data is sought that does
not relate to an investigation to determine the source of journalistic
information (for example where the journalist is a victim of crime
or is suspected of committing a crime unrelated to their occupation)
Chapter 2 of Part 1 of the Act may be used so long as the designated
person gives adequate consideration to the necessity, proportionality,
collateral intrusion, including the possible unintended consequence
of the conduct. The revised Code contains very little guidance
concerning what these considerations should be and that absence
needs to be addressed.
A free press is fundamental to a free society and
the government is determined that nothing is done that puts that
at risk. The Government therefore accept both of the Commissioner's
recommendations. We will consider how best to enact them in conjunction
with considering responses to the consultation on the code of
practice. A revised code will then be laid in Parliament for approval.
Conclusion/Recommendation 5
RIPA is not fit for purpose, with law enforcement
agencies failing to routinely record the professions of individuals
who have had their communications data accessed under the RIPA.
The recording of information under RIPA is totally insufficient,
and the whole process appears secretive and disorganised with
information being destroyed afterwards. Whereas we acknowledge
the operational need for secrecy both during investigations and
afterwards (so that investigative techniques more broadly are
not disclosed), we are concerned that the level of secrecy surrounding
the use of RIPA allows investigating authorities to engage in
acts which would be unacceptable in a democracy, with inadequate
oversight. We recommend that the Home Office use the current review
of the RIPA Code to ensure that law enforcement agencies use their
RIPA powers properly. (Paragraph 33)
Government response
The Government is committed to ensuring law enforcement
agencies use their RIPA powers lawfully and responsibly. RIPA
provides a robust legal framework for the use of investigatory
powers and is fully compliant with the UK's human rights obligations.
Interception and communications data acquisition may only take
place when considered necessary for a specified purpose set out
in RIPA and proportionate to the objective of the investigation.
As you know, David Anderson QC, the Independent Reviewer of Terrorism
Legislation, is currently conducting a statutory review of these
investigatory powers, which is due to report by 1 May this year.
Requests for communications data must be authorised
on a case by case basis by a senior officer or official in the
applying authority at a rank and for purposes stipulated by Parliament.
We will now also ensure, as soon as practicable, that requests
which are ought to determine the source of journalistic information,
will require judicial approval. Interception warrants may only
be issued by the Secretary of State when satisfied that the interception
is necessary and proportionate and the information sought cannot
be obtained by other means.
IPA also provides for independent oversight of the
use of these powers by the interception of Communications Commissioner,
who must have held high judicial office, and who reports on public
authorities' use of communications data and interception to the
Prime Minister. The reports are laid before Parliament. Since
the Data Retention and investigatory Powers Act 2014, the Commissioner
is required to report on a bi-annual basis. The Commissioner
is also able to report to the Prime Minister on any other matter
elated to the carrying out of his functions, as his important
inquiry into police accessing the communications data of journalists
demonstrates.
We agree that the recording of information can be
improved. That is why the draft code specifies that, where an
individual that handles privileged or otherwise confidential material
is concerned, the profession of the individual should be recorded
in the application. Furthermore, the code specifies a number of
additional record keeping requirements
James Brokenshire MP
February 2015
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