Investigatory Powers Bill — House of Lords, 2016-09-07
Topic: Law and Crime
Richard Rosser (Labour, Centre-left): My Lords, first, I express our thanks to David Anderson QC, the Independent Reviewer of Terrorism Legislation, for his independent review of the operational case for the bulk investigatory powers contained in Parts 6 and 7 of the Bill, including the Operational Case for Bulk Powers document published with the Bill. The review came about as a result of pressure from the shadow Home Office team during the passage of the Bill in the Commons and is intended to assist in our consideration of the need for the bulk powers in the Bill While there had been three preparatory studies, pre-legislative and legislative scrutiny by a number of parliamentary committees, and the Government’s presentation in March of the operational case, consideration of the Bill had not included an authoritative, independent analysis of the operational case for the bulk investigatory powers in Parts 6 and 7. This is now the first opportunity we have had to discuss Mr Anderson’s report as it was not available either at Second Reading or the days spent in Committee prior to the Summer Recess The review by David Anderson, which became available last month, considered the operational case—whether there was one, and the strength or otherwise of any such case—for four of the powers in the Bill, namely: bulk interception, bulk equipment interference, bulk acquisition of communications data and bulk personal datasets. These powers can be used only by MI5, MI6 and GCHQ. It seems that the UK is one of five EU member states, the others being Germany, France, the Netherlands and Sweden, which have detailed laws that authorise the conduct of activities similar to at least some of the powers that Mr Anderson was asked to review In chapter 4 of his report Mr Anderson sets out the methodology by which he sought to evaluate the operational case for the powers under review. In paragraph 4.5 on page 72 he states that: "A frame of reference is needed for the purposes of evaluating the utility or otherwise of the powers under review" Mr Anderson says that such a framework is not provided by the Government’s operational case, to which I have already referred, since it, "categorises the purposes served by the powers under review in ways which lack coherence and consistency" He says that he had to ask the security and intelligence agencies to agree a classification against which their claims of utility could be evaluated. Perhaps the Minister can give us the Government’s response to Mr Anderson’s views on the operational case for the bulk powers he was asked to review Each member of the review team was in agreement with the conclusions of Mr Anderson’s report and with the single recommendation that he made. The report’s conclusion is that there is, "a proven operational case for three of the bulk powers, and that there is a distinct (though not yet proven) operational case for bulk equipment interference" Equipment interference in bulk as opposed to a targeted equipment interference warrant is a new power. The report also found that: "The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower" Mr Anderson was not asked to reach conclusions as to the proportionality or desirability of the bulk powers, as opposed to the operational case for them, on the grounds that these are matters for Parliament David Anderson’s report makes a single recommendation, which is covered by this amendment. That recommendation is that a technology advisory panel of independent academics and industry experts should be appointed by the Investigatory Powers Commission to advise on the impact of changing technology and on how MI5, MI6 and GCHQ can reduce the privacy footprint of their activities While the report finds that the bulk powers in question have a clear operational purpose, it accepts that technological changes will lead to new questions being raised and that adoption of the recommendation for a technology advisory panel will enable such questions to be asked and answered on a properly informed basis. I hope that, when he responds, the Minister will indicate where the Government stand in relation to the single recommendation in the report. We fully support the recommendation and the case that Anderson has made for the panel, which we believe should be established as soon as practicably possible While there is only a single recommendation in the report—and this is our first opportunity to discuss it—other points and issues are addressed. I should like to take the opportunity to raise some of them with the Government and to seek a response on the record prior to making any decisions about what and what not to raise on Report Paragraph 2.84 on page 45 of the Anderson report states: "It has come to my attention that some", bulk personal datasets, "may contain material that is comparable to the content of communications, and in rare cases even material subject to", legal professional privilege "In the light of these facts I have already recommended to the Home Office that consideration be given to the introduction of additional safeguards to the Bill and Code of Practice" Can the Minister say what action the Government have taken or intend to take in the light of what David Anderson has said in the paragraph to which I have just referred In paragraph 2.53 on page 36 of his report, Mr Anderson states: "The Government has expressly acknowledged that targeted thematic EI"— equipment interference— "operations, like their bulk counterparts, can take place ‘at scale’, and that they may cover a large geographic area or involve the collection of a large volume of data" He goes on to say that nevertheless the thematic equipment interference power is subject to fewer limitations. He says that, in particular, targeted thematic equipment interference operations, "can be conducted by a wider range of authorities (including the police) … need not be connected with national security, and … need not be overseas-focused" In paragraphs 2.56 and 2.57 on page 37 of his report, David Anderson says that he has previously commented that the widely drawn provision for targeted thematic equipment interference in practice introduces an alternative means of performing bulk equipment interference but with fewer safeguards, and that it should be possible to reduce the scope of targeted thematic warrants, "so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk" He goes on to say that that comment relates to the desirable scope of targeted warrants under Part 5 of the Bill and not to the powers that he was tasked to review. Consequently, he says that he has not pursued the matter in his report, apart from noting that it would be particularly important for those authorising and approving warrants to ensure that the thematic powers are kept within strict bounds and not used as a means of avoiding or circumventing the restrictions that are quite properly being placed on the authorisation of bulk warrants.