The Committee recommends that major modifications for targeted interception warrants, as defined in the draft Bill, should also be authorised by a Judicial Commissioner.
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Witnesses emphasised that “it is easy to see how [the five day] provision may become a loophole ripe for excess and/or abuse”.363 The Committee therefore recommends that the period in which urgent warrants must be reviewed by a Judicial Commissioner should be shortened significantly. We suggest that they must be reviewed within 24 hours of their signature by the Secretary of State.
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The Government considers that it is necessary to maintain different authorisation processes for modifications to equipment interference warrants in order to maintain an element of independent oversight of modifications. The distinction reflects the different authorisation regimes for the issue of EI warrants for law enforcement and the security and intelligence agencies. Equipment interference warrants for the security and intelligence agencies are issued by the Secretary of State. When modifications are required the Secretary of State, or a senior official reporting to the Secretary of State, can authorise any such modification (if the modification is considered necessary and proportionate). If the modification is made by a senior official the Secretary of State must be informed. This ensures that modifications are overseen by the original issuing authority. Equipment interference warrants for law enforcement agencies are issued by the respective law enforcement chief, rather than the Secretary of State. Modifications can be made by either the law enforcement chief or an appropriate delegate. In the absence of judicial oversight, this would mean that modifications could be made without any external or independent consideration. The Government therefore feels that it is appropriate to require a Judicial Commissioner to review any modifications by law enforcement chiefs/delegates, in order to maintain a robust authorisation process.
Clause 22 of the revised Bill now provide that urgent warrants must be approved by a Judicial Commissioner within three working days of authorisation by a Secretary of State. They will continue to last for five working days before, if appropriate, they must be renewed. The Government believes that this will provide sufficient time for the Judicial Commissioner to be presented with the facts of the case and to reach a decision on the necessity and proportionality of the warrant.
The relevant draft Codes of Practice published alongside the draft Bill make clear that urgent warrants should fall into at least one of the following three categories: Imminent threat to life or serious harm - for example, if an individual has been kidnapped and it is assessed that his life is in imminent danger; An intelligence gathering opportunity which is significant because of the nature of the potential intelligence, the operational need for the intelligence is significant, or the opportunity to gain the intelligence is rare or fleeting – for example, a group of terrorists is
about to meet to make final preparations to travel overseas; A significant investigative opportunity - for example, a consignment of Class A drugs is about to enter the UK and law enforcement agencies want to have coverage of the serious criminals in order to effect arrests.
The Home Office should review its proposals in relation to LPP to ensure that they meet the requirements of Article 8 and relevant case law.
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The Committee recommends that the Home Office should reconsider the level of protection, which the Bill affords to journalistic material and sources. This should be at least equivalent to the protection presently applicable under PACE and the Terrorism Act 2000.
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The Committee recommends that provision for the protection of Legal Professional Privilege (LPP) in relation to all categories of acquisition and interference addressed in the Bill should be included on the face of the Bill and not solely in a code of practice. The Government should consult with the Law Societies and others as regards how best this can be achieved.
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The Committee also recommends that the Bill should make it illegal for UK bodies to ask overseas agencies to undertake intrusion which they have not been authorised to undertake themselves.
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We recommend that the Government should give more careful consideration to the consequences of enforcing extraterritoriality. The Government should re-double its efforts to implement Sir Nigel Sheinwald’s recommendations.
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Clause 7 of the revised Bill has been amended to make sure that an overseas agency cannot be tasked to undertake interception on behalf of a UK authority, in respect of an individual in the UK, without a targeted interception warrant or a targeted examination warrant being in place. The draft Code of Practice on Interception of Communications describes how those agencies that undertake bulk interception may request unanalysed intercepted content or secondary data from another government, where a relevant interception warrant has already been issued, or where it does not amount to a deliberate circumvention of the Act. The draft Code of Practice also makes clear that any information obtained by these means is subject to the same internal rules and safeguards that would apply to information intercepted by the agency under the Bill.
The Bill and Chapter 6 of the associated draft Communications Data Code of Practice address recommendations made by the Interception of Communications Commissioner and by David Anderson in ‘A Question of Trust’ with regards to the acquisition of communications data for the purposes of identifying journalistic sources, and provide clear guidance on the additional considerations that apply when seeking to obtain data in relation to any person who handles privileged or otherwise confidential information. In addition Chapter 6 in the draft Code of Practice also now provides for ‘novel or contentious’ requests to be referred to the IPC for consideration, and includes information on the special considerations that must be made in respect of sensitive professions.
The Committee recommends that major modifications for targeted interception warrants, as defined in the draft Bill, should also be authorised by a Judicial Commissioner.
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The omission of a reference to the Mental Health (Care and Treatment) (Scotland) Act appears to us to be an oversight, which we agree could lead to the creation of conflicting authorisation regimes for the use of interception in psychiatric hospitals in Scotland. The Committee recommends that this apparent oversight be addressed in the revised Bill.
A memorandum on the ECHR and other human rights issues has been published alongside the introduction of the Bill, which makes clear how the provisions in the Bill meet the requirements of Article 8 and relevant case law.
The previous Clause 61, now Clause 68, which has been amended to remove the exemption for the security and intelligence agencies, remains Article 10 compliant. In December 2015, the IPT delivered its judgment in the complaint brought by News Group Newspapers Ltd against the Metropolitan Police Service about access to communications data in Operation Alice. The IPT found that the then legal regime was deficient as it did not contain effective safeguards to protect Article 10 (freedom of expression) rights “in a case in which the authorisations had the purpose of obtaining disclosure of the identity of a journalist's source”. It states that “Our decision is confined to such a case”. It also notes that the March 2015 amended Code of Practice, which requires law enforcement to obtain independent authorisation through the use of PACE in such cases, "cures this incompatibility" and that the Bill will require judicial approval of requests for communications data to determine the identity of a journalist's source. The use of PACE for such requests has always been regarded as a stop gap until
the provisions in Clause 61, now Clause 68 can be brought into force. The recognition by the Courts of the steps that the Government has taken, and is taking, to rectify the gap in our law is welcome.
It is unclear to us why the Home Office chose to create a group of Judicial Commissioners rather than creating an Independent Intelligence and Surveillance Commission as recommended by David Anderson QC, a recommendation endorsed by the knowledgeable and experienced Interception of Communications Commissioner’s Office. The benefits of having a senior independent judicial figure in the Investigatory Powers Commissioner would not be lost by putting the IPC at the head of a Commission. The evidence we have heard is that the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate. We recommend that such a Commission should become the oversight body in the Bill.
The Government is committed to creating a new oversight body which simplifies the current oversight landscape, provides a more visible single body, and one with greater powers and resources. This will be achieved without the need for a new statutory body to be created. Creating an Investigatory Powers Commission as a statutory body would significantly increase its running costs, as it would have increased reporting and corporate / administrative responsibilities and so require extra staff and the appointment of Non-Executive Directors. The Government anticipates that it would cost an extra £0.5m p/a. However, it would have no additional powers and would not, in practice, be any more independent.
The Government has undertaken a further review of other statutes that remain available to intercept communications and acquire communications data and believes that, where necessary, they are provided for in the Bill. One clarification that has been identified is the interception of postal communications in immigration centres provided for in 57 rules issued under the Immigration and Asylum Act 1999. This is now provided for at Clause 44.
The omission of a reference to the Mental Health (Care and Treatment) (Scotland) Act appears to us to be an oversight, which we agree could lead to the creation of conflicting authorisation regimes for the use of interception in psychiatric hospitals in Scotland. The Committee recommends that this apparent oversight be addressed in the revised Bill.
The Committee was provided with a table of investigatory powers in other legislation by the Home Office.352 As the Mental Health (Care and Treatment) (Scotland) Act 2003 was missed off this table, we are concerned that there may be other omissions. We recommend that the Home Office should further review its list of investigatory powers in other legislation to ensure that nothing else has been overlooked.
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The Committee believes that the differential approach to authorisations and modifications for targeted equipment interference warrants applied to the security and intelligence agencies and law enforcement agencies is confusing and unjustified. We therefore recommend that the approach to targeted equipment interference warrants should be standardised and that all modifications should be subject to judicial authorisation.
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Clause 30 of the Bill provides that a Secretary of State must be notified of major modifications to a targeted interception warrant. All such modifications will be subject to retrospective oversight by the IPC. To require authorisation by a Judicial Commissioner for each such modification would drastically reduce the operational agility of the agencies.
Recommendation 37: The Committee recommends the inclusion of a definition of the word “urgent” for the purposes of authorising urgent warrants.
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The Committee would like to see more safeguards for the sharing of intelligence with overseas agencies on the face of the Bill. These should address concerns about potential human rights violations in other countries that information can be shared with.
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The Committee agrees that the current wording of the provisions for targeted interception and targeted equipment interference warrants is too broad. 468.The Committee recommends that the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people
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The Committee is satisfied that the proposed authorisation process for communications data is appropriate but recommends that extra protections for privileged and confidential communications should be applied in the same way as is proposed for journalists in Clause 61.
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The Committee recommends the removal of emergency procedures for communications data so that the Single Point of Contact process can never be bypassed.
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Clause 30 of the Bill provides that a Secretary of State must be notified of major modifications to a targeted interception warrant. All such modifications will be subject to retrospective oversight by the IPC. To require authorisation by a Judicial Commissioner for each such modification would drastically reduce the operational agility of the agencies. Currently the law (RIPA) allows for major modifications to be made to thematic targeted interception warrants. This ability is a key feature in the effective operation of the warrantry system. Such warrants are used for fast moving and urgent events – for example, when a person has been kidnapped and his life is in imminent danger. Being able to have a single targeted warrant against the group of kidnappers, without needing to seek separate authorisations for each of the kidnappers as their identities become known has significant operational benefits. Thematic warrants are not, though, just important for urgent situations. If, for example, a law enforcement agency wished to intercept the users of a paedophile file sharing website, they would be likely to use a thematic warrant because it would not be possible to identify each individual user beforehand.
The Committee agrees with the recommendation of the DPRRC on modifications to the list of ranks and offices which must be held by a designated senior officer. We recommend that Clause 56(1) and Clause 57(4) should be amended accordingly.
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The Committee recommends that authorisations for bulk personal datasets should be required to be specific and provisions for class authorisations should be removed from the Bill. The provision relating to replacement datasets (Clause 154(6)) should also be removed.
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Provision relating to this Act is now included in the revised Bill, at Clause 43.
The Committee agrees with the recommendation of the Delegated Powers and Regulatory Reform Committee (DPRRC) on modifications to the list of ranks and offices which must be held by a designated senior officer. We recommend that Clause 56(1) and Clause 57(4) should be amended accordingly. The Government has amended Clause 63 so that the enhanced affirmative procedure is required for any change to the list of ranks and offices which must be held by a designated officer which would have the effect of reducing the rank of the person authorising the application. Clause 64 has been amended so that the enhanced affirmative procedure is required for any amendments to the rank held by a designated senior officer in alocal authority.
The Committee recommends that if Clause 61 remains in its present form the Bill should make it clear that RIPA and Clause 61 do not act so as to enable the investigatory authorities to avoid the application of PACE or the Terrorism Act and the ability they afford to media to know about an application for communications data and make representations as to the proposed acquisition.
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The Government welcomes the Committee’s recognition of the importance of the SPOC process. The draft Code of Practice on Communications Data makes clear the steps public authorities should take to ensure a SPOC is available. However, there may be circumstances where, despite the best efforts of the public authority, a SPOC is not available. In very limited circumstances it is important that an emergency process is available to, for example, avoid loss of life. More details on the limitations of this provision can be found in Chapter 4 of the Communications Data Code of Practice. The Home Office will work with public authorities and CSPs to put in place clear processes so that a CSP can validate the authenticity of requests not made through a SPOC. The IPC will be notified whenever these procedures are used, to ensure retrospective oversight.
Class BPD warrants provide an appropriate means of authorising the retention and use of datasets that are similar in nature and in the level of intrusiveness. This would, for example, allow the Secretary of State to authorise a class of dataset relating to travel where these conditions were met, such as for datasets that are similar in nature but refer to different travel routes or are provided by different sources. The decision to issue a warrant for a particular class of data would be subject to approval by a Judicial Commissioner before being issued. The draft Code of Practice provides clear guidance on the factors that the security and intelligence agencies will need to consider in determining whether it is appropriate to use a class warrant or whether it may be more appropriate to apply for a specific BPD warrant. These factors include whether the nature or the provenance of the dataset raises particularly novel or contentious issues; whether it contains a significant component of intrusive data; and whether it contains a significant component of confidential information relating to members of sensitive
professions. The draft Code of Practice published alongside the revised Bill also sets out detailed requirements about how the security and intelligence agencies must keep under review the ongoing necessity of holding individual datasets, including those retained under a class warrant. In considering whether a class warrant should be renewed, the Secretary of State will consider whether continued retention of datasets held under the warrant remains necessary and proportionate. This decision will be subject to review by a Judicial Commissioner. The provision for a replacement dataset would only be relevant where a specific BPD warrant has been authorised and is already in place. This is a pragmatic and sensible approach to situations where a dataset is regularly or continually updated –there may be a particular dataset that is, for example, updated on a weekly or monthly basis. In these cases the necessity and proportionality case and operational purposes would not alter within these timeframes. To require repeated new warrants in this scenario would not be proportionate; the notion of a replacement warrant simply allows the agencies to use this amended data in line with the existing authorisation.
The Secretary of State must be satisfied that satisfactory and equivalent handling arrangements are in place before sharing UK intercept material with an overseas authority, as set out in the new Clause 47 in the revised Bill. This reflects the fact that the legal systems and protections that apply in other jurisdictions may not be exactly the same as those in the UK. The revised Bill makes clear in Clause 113 that this applies to EI material as well as that derived from interception. The draft Codes of Practice on Interception of Communications and Equipment Interference also provide more information on the safeguards associated with sharing intercept and equipment interference material with international partners at Chapters 9
and 8.
As the Prime Minister and Home Secretary have previously stated, the Government is engaging in preliminary discussions with international partners on how a new international framework for access to data across jurisdictions might operate in principle. This would be based on strong, human rights-compliant domestic regulatory oversight
The Committee was provided with a table of investigatory powers in other legislation by the Home Office.352 As the Mental Health (Care and Treatment) (Scotland) Act 2003 was missed off this table, we are concerned that there may be other omissions. We recommend that the Home Office should further review its list of investigatory powers in other legislation to ensure that nothing else has been overlooked.
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The Home Office should review Clause 61 to ensure that it meets the requirements of Article 10 ECHR.
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Clauses 25 and 100 of the revised Bill contain additional safeguards for items subject to legal privilege that have been acquired by targeted interception or equipment interference, and Clauses 135 and 171 set out on the face of the Bill the safeguards that apply before content that contains legally privileged material can be selected for examination. The Law
Society and Bar Council have been consulted on these clauses. Schedule 7 of the revised Bill makes clear that the Codes of Practice accompanying the Bill must contain particular provision in relation to journalistic information, and members of professions who hold material that is subject to legal privilege or confidential material. Information on this issue is provided in Chapter 9 of the draft Interception of Communications Code of Practice, Chapter 6 of the draft Communications Data Code of Practice, Chapter 8 of the draft Equipment Interference Code of Practice, Chapter 9 of the draft Bulk Acquisition Code of Practice and Chapters 4 and 7 of the draft Code of Practice on the security and intelligence agencies’ retention and use of Bulk Personal Datasets.
PACE and the Terrorism Act 2000 provide appropriate mechanisms for law enforcement bodies to obtain journalistic material from journalists themselves. RIPA, and in future the Investigatory Powers Bill, is the appropriate mechanism for acquisition of communications data from CSPs. The Bill makes it clear that requests for communications data must be made through the powers outlined in the Bill. This does not require advance notification to be provided to a journalist of a communications data request. In many cases such notification would alert the subject under investigation to the ongoing investigation, to the detriment of the case. In addition no other applications for communications data require prior notification, nor do applications made to a court by the police for comparable data, for example banking records, or for other police powers such as applications for covert surveillance. In addition, the Interception of Communications Commissioner conducted a detailed investigation into this issue and in his report published in 2015 he clearly rejected the claim that public authorities have utilised RIPA “to avoid the use of PACE”
The Government is satisfied that the additional protections set out in the new draft Codes of Practice which have been published alongside the revised Bill are appropriate in relation to journalistic material. This reflects the fact that it is much harder to define in law what constitutes a journalist (as opposed to legally privileged material), as seen during the Joint Committee’s evidence sessions on this issue. However, Schedule 7 of the revised Bill now makes clear that all the Codes of Practice accompanying the Bill must contain particular provision in relation to journalistic information.
The evolving bill: Authorization
