Draft Investigatory Powers Bill Contents

6Remaining issues

The inadmissibility of intercept material as evidence

672.The draft Bill maintains the status quo which prohibits intercepted material from being used as evidence in court.647 In his report, A Question of Trust, David Anderson QC addressed some of the reasoning for this and referred to the findings of the most recent review into this issue led by Sir John Chilcot.648 In his response to the findings of Chilcot’s review, the Security Minister at the time, James Brokenshire MP stated that allowing intercept as evidence would be too costly and the possible benefits would be outweighed by the potential risks.649

673.The Committee received evidence on this issue which again asks for the Government to reconsider its position.650 As the Bar Council pointed out:

“the Bill allows such material to be used in the tribunals set out in Schedule 3 (see section 42(1)), namely the IPT, [the Special Immigration Appeals Commission (SIAC)], etc. If the intercept material can be used in those tribunals, presumably predominantly to support the government’s case, it is difficult to see why it cannot be used in non-closed proceedings, even if the process by which it has been obtained is not in evidence nor disclosed to the accused. There have now been numerous reports on this matter, and the use of it in closed proceedings only is unsatisfactory. The absolute prohibition on use of this material in certain cases of serious crime risks failure to do justice to victims and potential victims of e.g. modern slavery offences.”651

674.This issue is further complicated, in the view of Big Brother Watch, by “the fact that evidence gained through equipment interference is permitted”652 (see paras 300–305), making the “argument that the evidence from intercepting communications would reveal too much about the methods and work of the intelligence agencies [seem] nonsensical when it is permitted in a power which only recently has been avowed.”653

675.The Committee recommends that the Government keeps the issue of the inadmissibility of intercept material as evidence under review and takes note of the significant perceived benefits of using such material as evidence. (Recommendation 78)

Disclosure of intercept evidence to judges and prosecutors

676.Schedule 3 sets out some exceptions to Clause 42, and Clause 21 of Schedule 3 deals with disclosures to prosecutors and judges, with Clause 21(6) detailing who can be considered to be a relevant judge.

677.The Committee received written evidence from HH Judge Peter Thornton QC, the Chief Coroner, proposing that this list be extended. He proposed that “the list of persons who are “a relevant judge” in paragraph 21 of Schedule 3 to the Bill be extended to include: retired judges of the High Court or retired Circuit judges who are under the age of 75.”654 This would be so that if a retired judge is nominated to conduct an investigation (including an inquest), he or she will be able to view relevant material. Without being able to do so, the investigation and inquest process may be incomplete. This would also include a judge who is nominated in the same way before retirement to conduct an investigation (including inquest) which continues after the judge’s retirement age.

678.Additionally, “the Chief Coroner proposes that the list in paragraph 21 of Schedule 3 should also include a cadre of six senior coroners of England and Wales, selected by the Chief Coroner and approved by the Lord Chief Justice, who are under the age of 75. This cadre is necessary because more and more coroner investigations (including inquests) involve intelligence material. Where this arises, and it would not be necessary for a judge to be nominated to conduct the investigation (including inquest), the Chief Coroner could direct a senior coroner from the cadre to conduct the investigation (and inquest). The Chief Coroner could also arrange special training for the cadre of senior coroners.”655

679.The Committee recommends that the Government should consider the Chief Coroner’s proposals and engages further with him to come to a satisfactory agreement about which judges can be included in the list in Schedule 3. (Recommendation 79)

Power to make consequential provision

680.The DPRRC in their memorandum on delegated powers highlight the power in Clause 201(2) to make consequential provision. They explained that:

“Clause 201(2) confers a power on the Secretary of State by regulations to make such consequential provision as he or she considers appropriate. In common with many provisions of this kind, Clause 201(3) provides that this power may be exercised by amending or otherwise modifying provisions of primary or subordinate legislation.”656

681.Firstly, they draw attention to the fact that this allows the Secretary of State to modify future enactments:

“Clause 201(3) refers to “enactments” and it is clear from the way in which this expression is defined in Clause 195(1) that the powers conferred by Clause 201(3) include the power to amend or otherwise modify future enactments. While it is reasonable for there to be a need to amend past enactments to ensure that they fit with the provisions of the Bill, the same does not necessarily apply to future legislation which should be capable of taking account of the Bill’s provisions when it is enacted. Accordingly, we would ordinarily expect a convincing case to be made in the memorandum for a power to use subordinate legislation to amend future primary legislation. In this case, the memorandum says nothing about why it is necessary to have the power to amend future enactments. Two precedents are given in paragraph 113 of the memorandum, but in neither case does the power include a power to amend future enactments. We regard this aspect of the power as being inappropriate in the absence of a reasonable explanation for why it is needed.657

682.We agree with this conclusion of the DPRRC on the power in Clause 201 (2) to make consequential provision and recommend the deletion of powers to amend future enactments. (Recommendation 80)

683.Additionally, the DPRRC draw attention to the negative procedure for modifications to a provision of primary legislation:

“Regulations under Clause 201(2) are subject to the affirmative procedure where they amend or repeal a provision of primary legislation. The negative procedure applies in all other cases, including where the regulations otherwise modify a provision of primary legislation. Non-textual modification of primary legislation can however be used to make changes which are no less significant than textual amendments. We have expressed the view, therefore, on a number of occasions—most recently in our reports on the Scotland Bill658 and the Enterprise Bill659—that, as a matter of general principle, non-textual modifications of primary legislation should be subject to the same level of Parliamentary scrutiny as textual amendments, namely, the affirmative procedure.660

684.We agree with the DPRRC that the negative procedure for these powers is inappropriate and recommend that any modifications to primary legislation be subject to the super-affirmative resolution procedure. (Recommendation 81)

Non-Technical Definitions

685.A number of issues have been raised about technical definitions in the draft Bill and these have been addressed under Chapter 3 (Capabilities) of this report.

686.Additionally, discussion around the definition of ‘urgent’ in relation to urgent warrants is discussed in paras 453–460.

687.A number of witnesses have also expressed concerns about the fact that other non-technical concepts of high importance are not defined by the draft Bill, and this section will examine some of these.

National Security

688.National security is given as a test of the necessity of an action for the following powers in the draft Bill:

689.National security is also given as a valid reason for the following actions:

690.Witnesses have pointed out that the term “national security”, which can be used to justify so many of the actions provided for in the draft Bill, is never defined anywhere in the Bill.661 Rachel Logan from Amnesty International UK said, “just recently, a decision by the Grand Chamber in Strasbourg, I think last week, said that it is important to have tighter definitions than just “threats to national security when we talk about warrants of this kind.”662

691.The Committee recommends that the Bill should include a definition of national security in order to provide clarity to the circumstances in which these warrants can be issued. (Recommendation 82)

Economic well-being

692.Similarly, “the economic well-being of the UK so far as those interests are also relevant to the interests of national security” is given as a test of the necessity of an action for the following powers in the draft Bill:

693.Again, witnesses felt this term was too vague to justify some of the powers it authorises. Professor John Naughton and Professor David Vincent suggested that it would be “appropriate that the purpose of “economic well-being” should receive critical scrutiny by Parliament.”663

694.Lord Carlile, while opposed to a statutory definition, did highlight the need for some clarity:

“there should be greater understanding in this context of ‘safeguarding the economic well-being of the UK’. Whilst I am opposed to a statutory definition, the Committee would be entitled to look for more clarity as to the process whereby this criterion is certified, and who is involved. It would be reasonable for HM Treasury to be required operationally in each case to certify that the issues under consideration reached the high standard implied by the test.”664

695.The UN Special Rapporteurs were concerned that “ambiguous terms such as “economic well-being”, [heighten] the risk of excessive and disproportionate interception.”665

696.The Committee recommends that the Bill should include a definition of economic well-being in order to provide clarity to the circumstances in which these warrants can be issued. (Recommendation 83)

Publication of codes of practice

697.Above we have demonstrated the importance of codes of practice in containing much of the detail about the way the powers in the draft Bill will be exercised. This point was also underlined recently by the House of Commons Science and Technology Committee.666 This is particularly the case in relation to the definitions of communications data (see paras 69–70), ICRs (paras 120–122), the removal of electronic protection (paras 263–264), and Equipment Interference (paras 292–295).

698.The Codes of Practice will provide essential further details on how the powers in the draft Bill will be used in practice. We recommend that all of them should be published when the Bill itself is introduced to allow both Houses to conduct full scrutiny of their contents. (Recommendation 84)

Bulk data, automated analysis and the right to privacy

699.An important question raised with the Committee was how the right to privacy can be maintained when data is collected and retained in large volumes. Dr Paul Bernal explained that:

“A key issue in relation to the gathering and retention of communications data is when the relevant rights are engaged: it is when data is gathered and retained, when it is subject to algorithmic analysis or automated filtering, or when it is subject to human examination. When looked at from what might be viewed an ‘old fashioned’ communications perspective, it is only when humans examine the data that ‘surveillance’ occurs and privacy is engaged. In relation to internet communications data this is to fundamentally miss the nature of the data and the nature of the risks. In practice, many of the most important risks occur at the gathering stage, and more at what might loosely be described as the ‘automated analysis’ stage.”667

700.Christopher Graham, the Information Commissioner, told the Committee that:

“The risks and the rights arise at the point of collection. It is a fundamental data-protection principle under the directive from which the Data Protection Act arises that information is not retained for longer than is necessary.”668

701.Privacy International said that:

“the Government has advanced the argument that an interference with privacy only occurs when data is examined, or “read”, by a person as opposed to a machine. We disagree with this position, as ECHR case law makes clear that the interference with privacy occurs at the time of the interception regardless of whether the data is ever “read” by a person”.669

702.This contrasts with Clause 149 (3) of the draft Bill, which says that:

“References in this Chapter to the examination of material are references to the material being read, looked at or listened to by the persons to whom it becomes available as a result of the warrant.”

703.We urge the Investigatory Powers Commissioner to scrutinise the automated analysis of bulk datasets conducted by the security and intelligence agencies to ensure that they are conducted appropriately and proportionately and with regard to privacy and data protection requirements. (Recommendation 85)

A review provision

704.At the beginning of this report, we discussed the timescale for the Joint Committee’s inquiry, within the context of the timescale for the Government’s responses to various reviews and the need to legislate further before the expiry of DRIPA at the end of 2016.

705.We close our report by considering the lifespan of the Bill itself. Our witnesses pointed to a combination of the significance of the Bill, the difficulties, exposed by RIPA, of seeking adequately to “future proof” the Bill against technological change, and the shortness of the timescale available for consultation and scrutiny of its contents.

706.The case for some sort of sunset provision was summarised by the Information Commissioner:

“The draft Bill is far reaching and has the power to affect the lives of all citizens to differing degrees. For these reasons, the bill should include a sunset clause or other provisions requiring effective post legislative scrutiny. This would ensure that measures of this magnitude remain necessary, are targeted on the right areas and are effective in practice. To fail to make this provision risks undermining public trust and confidence. It will also enable the legislation to be considered in the light of the latest jurisprudence from the CJEU and ECtHR.”670

707.Variations on the Information Commissioner’s proposal were put to us by another of other witnesses, including medConfidential,671 Amberhawk Training Limited,672 Dr Paul Bernal,673 David Davis MP,674 Privacy International,675 and the Interception of Communications Commissioner’s Office.676 We put the suggestion to the Home Secretary when she gave evidence on 13 January. She conceded that “As technology advances, it may be necessary to revisit the powers, the legislative framework and the safeguards that are available” but argued that the Home Office’s aspiration for the Bill to “stand the test of time” and provide a period of stability and certainty made any form of sunset provision undesirable. She concluded that “advances in technology are [not] going to move according to sunset clauses established by Parliament.”677

708.We note the reservations expressed by the Home Secretary about a sunset provision. But we are of the view that some form of review after five years would be merited. We believe that a review provision of this sort, which would require the next Parliament to revisit the powers which are in the draft Bill, would go some way to provide assurance to those who have expressed concerns over the operational case for some of these powers. The evidence of several years’ operation will inform the debate. A provision which asked Parliament to revisit the intrusive powers it gives to the Executive after a period would, in our view, be a healthy way to fulfil the welcome aspirations for greater openness and legitimacy which underpin the draft Bill.

709.We agree with the Information Commissioner and others that the provisions of the Bill would benefit from detailed post-legislative scrutiny after an appropriate period. In our view, the appropriate vehicle to do this would be a specially constituted joint committee of the two Houses. This work should begin within six months of the end of the fifth year after which the Bill is enacted. Although the appointment of such a committee would be a matter for the two Houses, a provision in the Bill would provide a clear mandate and guarantee the timescale for this review.

710.We recommend that a provision should be added to the face of the Bill for post-legislative scrutiny by a committee of the two Houses within six months of the end of the fifth year after the Bill is enacted. (Recommendation 86)

647 Clause 42

648 David Anderson QC, A Question of Trust: Report of the Investigatory Powers Review, 2015, paras 9.16–9.18

649 HC Deb, 17 December 2014, col 99WS

650 For example, written evidence from Big Brother Watch (IPB0007), Martin Chamberlain QC (IPB0133), the Bar Council (IPB0134), Liberty (IPB0143), JUSTICE (IPB0148)

651 Written evidence by the Bar Council (IPB0134)

652 Written evidence by Big Brother Watch (IPB0007)

653 Ibid.

654 Written evidence by HH Judge Peter Thornton QC (IPB0026)

655 Ibid.

656 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform (see Appendix 3)

657 Ibid.

658 Delegated Powers and Regulatory Reform Committee, Scotland Bill; Trade Union Bill; Enterprise Bill; Draft Legislative Reform (Exempt Lotteries) Order 2016 (15th Report, Session 2015–16, HL Paper 64) paras 10 to 13

659 Delegated Powers and Regulatory Reform Committee, Enterprise Bill [HL]: European Union Referendum Bill (9th Report, Session 2015–16, HL Paper 42) paras 17 to 21

660 Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform (see Appendix 3)

661 See, for example, Q 77 (Professor Ross Anderson) and written evidence from Annie Machon (IPB0064)

662 Q 203 (Rachel Logan, Amnesty International UK)

663 Written evidence from Professor John Naughton and Professor David Vincent (IPB0131)

664 Written evidence from Lord Carlile of Berriew CBE QC (IPB0017)

665 Written evidence from the UN Special Rapporteurs (IPB0102)

666 House of Commons Science and Technology Committee, Investigatory Powers Bill: technology issues (Third Report, Session 2015–16, HC 573)

667 Written evidence from Dr Paul Bernal (IPB0018)

668 Q 230 (Christopher Graham)

669 Written evidence from Privacy International (IPB0120)

670 Written evidence from the Information Commissioner (IPB0073)

671 Written evidence from medConfidential (IPB0005),

672 Written evidence from Amberhawk Training Limited (IPB0015)

673 Written evidence from Dr Paul Bernal (IPB0018)

674 Q 174 (David Davis MP)

675 Written evidence from Privacy International (IPB0120)

676 Written evidence from the Interception of Communications Commissioner’s Office (IPB0101)

677 Q 259 (Theresa May MP)

© Parliamentary copyright 2016