The changes the
government did make
Intelligence and Security Committe: We have similar concerns regarding the timeframes in respect of ‘urgent’ warrants. The draft Bill allows for a five working day ‘grace period’ in circumstances where the Agencies consider that a warrant is required urgently: in these circumstances, the Secretary of State may issue the warrant before the Judicial Commissioner has approved it. While we recognise the need for a procedure to handle urgent cases, five working days is unnecessarily long. The Committee recommends that the maximum period for which a warrant may be operational without judicial authorisation is two working days.
Joint Committee: (Recommendation 36) 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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Government Change: Reducing the period of time within which urgent warrants must be reviewed by a judge. The revised Bill reduces the period of time within which a Judicial Commissioner must review an urgent warrant for interception or equipment interference from five working days to three. This responds to recommendations made by the Joint Committee (recommendation 36) and while still ensuring that when a warrant is urgently required, there is no operational delay.
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Despite the joint committee providing compelling evidence that the working amount for warrants is too long, the government compromised, but not to either committees' recommendation.
The Joint Committe wrote in its report:
"The News Media Association suggested that the process for urgent warrants allows “the ‘so called double lock’ to be bypassed, even where it applies, so that the powers can be used and damage done long before the review deadline and any possible revoke.” Access Now said that, as a result, “this process fails to provide sufficient human rights protections or adequate oversight.” Furthermore, numerous submissions contended that the five day review period for urgent warrants was excessive and unjustified. The Bar Council told the Committee that “High Court Judges frequently listen to and grant orders made on urgent application. Provided sufficient Commissioners are appointed there is no reason why they would not be at least as available to make a decision as the Secretary of State.”
Intelligence and Security Committee: While the draft Bill contains some much-needed reforms of the current Commissioners which should increase the current limited oversight, there is one further addition which the Committee considers necessary. At present, when this Committee is informed of matters that would more appropriately fall to the Commissioners or the Investigatory Powers Tribunal, there is no mechanism through which these can be formally referred to them for investigation. It would therefore be sensible for this Committee – on behalf of Parliament – to be given such a power.
Joint Committee: (Recommendation 61) We recommend that members of the security and intelligence agencies should be able to contact the Investigatory Powers Commissioner with concerns over the misuse of surveillance powers without being at risk of prosecution for breaching the Official Secrets Act. The Investigatory Powers Commissioner should then have discretion whether to exercise his or her power to initiate an inquiry into the allegations. We recognise that there may be wider concerns over the role of whistle-blowers in this area. This is a matter which requires consultation and therefore this is not the appropriate Bill in which those wider concerns should be taken forward.
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Government: Providing for anyone to be able to share information in confidence with the Investigatory Powers Commissioner. This provision will permit the ISC, or those using investigatory powers, or subject to any of the obligations within the Bill, to contact the IPC. This will also allow those with concerns over the misuse of the powers to inform the IPC without being at risk of prosecution for breaching the Official Secrets Act. The IPC will then have discretion as to whether to exercise his or her power to initiate an inquiry into the allegations.
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The change allows another way for people to possibly disclose the misuse of investigatory powers. However, it is still through a central mechanism of the Investigatory Powers Commissioner, which means the possibility of whistle blowing to the people that are committing the fraud. The government did not allow the committee to be part of the process for possible misconduct.
Joint Committee: (Recommendation 53) We recommend that the Lord Chief Justice should have the power to appoint Judicial Commissioners following consultation with his judicial counterparts in Scotland and Northern Ireland and with the Prime Minister, Scottish Ministers, and the First Minister and deputy First Minister in Northern Ireland. This will ensure public confidence in the independence and impartiality of the Judicial Commissioners. It will also enhance political confidence in them. The Lord Chief Justice will also be able to assess the impact of appointments on the work of the High Court and the Court of Appeal, which must not be impaired by the creation of the Judicial Commissioners. The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.
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Government: Requirement for the Lord Chief Justice (LCJ) to be consulted before a person is appointed as a Judicial Commissioner or the IPC. The revised Bill includes an additional requirement for the LCJ, and his or her equivalents in the Devolved Administrations, to be consulted on the appointment of the Judicial Commissioners.
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Joint Committee:
"We recommend that the Lord Chief Justice should have the power to APPOINT Judicial Commissioners"
Government:
Requirement for the Lord Chief Justice (LCJ) to be CONSULTED before a person is appointed as a Judicial Commissioner or the IPC.
Committee recommended that the Lord Chief Justice Appoints commisioners, the government response is "he can be consulted."
Joint Committee: (Recommendation 57) Clause 171 changes the existing powers of the relevant commissioners to report errors in the use of surveillance powers to the individuals affected by raising the applicable test and requiring the involvement of the Investigatory Powers Tribunal in making the decision. This approach is cumbersome and unnecessary given there are no concerns over the way the current oversight bodies have used their powers of error-reporting. We recommend that the Investigatory Powers Commissioner exercise the error-reporting power alone, without reference to the Investigatory Powers Tribunal.
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Permitting the IPC to report errors to affected individuals without reference to the Investigatory Powers Tribunal. The revised Bill includes provision to allow the IPC to inform people who have suffered as a result of a serious error by a public authority.
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The government listens to the recommendation, but only allows reporting for "serious error" without any definition of what that means.
Joint Comittee: (Recommendation 65) The Judicial Commissioners should be able to communicate with the Investigatory Powers Tribunal on a point of law without consulting the Home Secretary. Clause 172(3) should be redrafted to reflect this.
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Permitting the Judicial Commissioners to communicate directly with the Investigatory Powers Tribunal. The Bill published in draft required Judicial Commissioners to consult the Home Secretary prior to providing advice and guidance to the IPT.
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The government fully complied with the recommendation.
Joint Committee: Maintaining public confidence in the Judicial Commissioners may occasionally require that a Commissioner is removed from the role because he or she has behaved in a manner incompatible with what is, in effect, high judicial office. Public confidence also requires that the power to remove from office does not damage the public perception of the Judicial Commissioners’ independence from the executive or the freedom of the Judicial Commissioners to make decisions that may be unpopular with the Government. We believe that the broad powers of dismissal contained in the draft Bill significantly impair the independence of the Judicial Commissioners. We therefore recommend that the Judicial Commissioners be subject to the same dismissal and suspension procedures as those applicable to serving senior judges: removal from office following a resolution of both Houses of Parliament and suspension and other disciplinary measures exercised by the Lord Chief Justice and Lord Chancellor.
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Altering the means by which a Judicial Commissioner can be removed from appointment. A Judicial Commissioner can now only be removed from office by a resolution of Parliament or, in limited circumstances, by the Prime Minister, rather than by the IPC.
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Recommendation mostly listened to, but also added the Prime Minister to the list of people that can dismiss Judicial Commissioners.
Joint Committee: (Recommendation 71) We recommend that rulings in the Investigatory Powers Tribunal should be subject to an interim right of appeal on the grounds of an error of law to save time and costs.
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Recommendation listened to.
Government: Ensuring that either an interim decision or a final determination from the IPT can be appealed. This makes clear that an interim decision (e.g. on a specific point of law that arises in the course of a challenge) could be challenged, as well as a final determination. TThis broadens the opportunities in which an appeal can be made from the IPT.
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Joint Committee: We recommend that the Judicial Commissioners should have a legal mandate to access all relevant technical systems required to ensure effective oversight of the powers contained in the Bill. This mandate should appear on the face of the Bill.
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Recommendation listened to.
Government: The revised Bill makes clear that Judicial Commissioners have an explicit legal mandate to access all relevant technical systems required to ensure effective oversight of the powers contained in the Bill.
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Joint Committee: 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.
Intelligence and Security Committee: The Mutual Assistance warrant regime in the draft Bill seeks to replicate the infrequently used provisions in the Regulation of Investigatory Powers Act 2000 (RIPA) governing interception undertaken under Mutual Legal Assistance Treaties. The Committee considers that these warrants have been given greater prominence in the draft Bill than they deserve which may give a misleading impression as to their nature. We recommend this should be clarified. Clause 39 of the draft Bill seeks to replicate existing provisions in RIPA which give effect to the EU’s Convention on Mutual Assistance in Criminal Matters, allowing interception in the UK to be conducted on behalf of a foreign partner. However, it omits the restriction in RIPA that the person being intercepted must be outside the UK. This therefore would allow for UK residents to be intercepted in the UK without a warrant being in place. Given that the Committee has not been given a reason for this omission, we presume this is a drafting error: in our view it is essential that the original RIPA safeguard is reinstated, and the communications of those in the UK properly protected.
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Government: The revised Bill makes clear that a warrant must be in place before asking an international partner to undertake activity in the UK on behalf of a public authority.
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The recommendation was followed for the Intelligence and Security committee, but the Joint Committee's concern seemed to be more based off of sharing information with potential human rights violating countries and the revision did address this concern.
Joint Committee: (Recommendation 79). 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.
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The revised Bill: provides for Counsel and the solicitor to an inquest to view intercept material; o allows the solicitor to a public inquiry to view intercept material; permits relevant intercept material to be considered where a retired judge has been appointed to lead an inquest (to extend the cadre of judges available to deal with these instances); and allows for intercept material to be used and examined when it is relevant to a public inquiry.
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Recommendation listened to.
We understand the Government’s position for not allowing the fact that a data retention notice has been served to be referred to in public. We suggest that some forum or mechanism, perhaps through the Technical Advisory Board, is made available so that CSPs subject to such notices can share views on how best to comply with them.
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Permitting disclosures of the existence of a data retention notice in specified circumstances. CSPs are prohibited from disclosing the existence of a retention notice, technical capability notice, or national security notice, to any person. As is currently the case, CSPs will be able to discuss their obligations with systems suppliers, oversight bodies and other companies subject to retention obligations. The Bill has been revised to ensure that CSPs can disclose the existence and contents of such notices with the permission of the Secretary of State.
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Recommendation listened to.
Intelligence and Security Committee: Where additional protection is provided for sensitive professions, these safeguards must be applied consistently, no matter which investigatory power is used to obtain the information. The new legislation should be amended to rectify this inconsistency.
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Government: Requiring the security and intelligence agencies to seek judicial authorisation for acquiring communications data to identify a journalistic source. The revised Bill removes an exemption for the security and intelligence agencies. It will bring the security and intelligence agencies into line with law enforcement and other public authorities.
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Listens to the recommendation, but there are still questions as to what the broader powers are in the bill that could divulge sensitive information like journalists' sources.
Joint Committee: (Recommendation 76) We have heard evidence that there is potential for the further simplification of the oversight landscape. This would improve transparency, reduce overlaps and ensure consistency of decision-making which would all contribute to ensuring oversight of the powers contained in the Bill comply with international law standards. We recommend that the Home Office should carry out a review to identify areas in which further simplification of oversight could occur.
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Government: The revised Bill includes an amendment to the Privacy and Electronic Communications Regulations 2003 so that personal data breaches that follow from communications data requests are not required to be reported twice, to both the IPC and Information Commissioner, by CSPs. The new Codes of Practice will require such errors to be reported to the IPC, who can report relevant errors to the Information Commissioner.
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Joint Committee asks for a large review to make the oversight process simpler, the government changes one small oversight mechanism and does not indicate any further review.
Joint Committee: (Recommendation 41) 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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Government: The revised Bill requires that certain changes to authorisation levels for access to CD are subject to enhanced Parliamentary scrutiny.
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Recommendation listened to.
Joint Committee: Recommendation 23) We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.
Joint Committe: (Recommendation 28) We recommend that the Home Office should produce its case for bulk personal datasets (BPDs) when the Bill is published.
Intelligence and Security Committee: The Committee acknowledges that the Agencies need the capability to undertake Equipment Interference as necessary. However, the Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn. The Committee therefore recommends that Bulk Equipment Interference warrants are removed from the new legislation.
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Alongside the Bill, the Government has published an operational case for the bulk powers in the Bill. This provides greater information about the bulk powers in the Bill, how they are used and why they remain essential. This gives effect to the recommendations from the Joint Committee (recommendations 23, 28), which was also covered by the ISC (recommendation D). The security and intelligence agencies have also made available to the ISC further classified information on the necessity of bulk powers.
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The government responds to part of the recommendations that they justify 'Bulk equipment interference'. However, the Intel and Sec committee does not ask them to justify it, they ask that it be struck from the bill because targeted equipment interference is enough.
Joint Committee: (Recommendation 9) We agree that all of the proposed purposes for which access to ICRs could be sought are appropriate. Furthermore, we recommend that the purposes for which law enforcement may seek to access ICRs should be expanded to include information about websites that have been accessed that are not related to communications services nor contain illegal material, provided that this is necessary and proportionate for a specific investigation.
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Government: It will allow law enforcement to acquire internet connection records to identify the internet services that a person or device has accessed that are not related to communications services nor contain illegal material, provided that this is necessary and proportionate for a specific investigation.
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The government obliges the recommendation, but it is one of the examples of listening when it increases the scope of the Bill. It allows for law enforcement to gain more records.
Joint Committee: We recommend that the definition of Internet Connection Records should be made consistent throughout the Bill and that the Government should give consideration to defining terms such as ‘internet service’ and ‘internet communications service’. We recommend that more effort should be made to reflect not only the policy aims but also the practical realities of how the internet works on a technical level.
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Government: A single definition of an ICR has been created, ensuring consistency across parts 3 and 4 of the Bill, which provide for the acquisition and retention of communications data respectively.
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The government responds by creating a definition, but they do not make that definition precise.
It is:
" In this Act “internet connection record” means communications data which— (a) may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and (b) comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication (whether or not a person)."
The Center for Democracy and Technology told the Joint Committee that “The definitions in the Draft Bill are insufficiently narrowly defined. Definitions should be drafted to map unambiguously onto current features of Internet architecture and protocols so that communications service providers (CSPs) can understand what they will need to collect, retain and be prepared to produce with the proper legal authorisation. We recognise the importance of ensuring that technological developments do not render the powers detailed in the bill ineffective. However, in our view the terminology is currently so broad that there is not only difficulty in mapping the legislative language to actual features of existing technology, but also real uncertainty created with respect to the scope of the powers sought in the Bill.”
This definition does not respond to these points.
Joint Committee: (Recommendation 46) 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.
Intelligence and Security Committee: Where additional protection is provided for sensitive professions, these safeguards must be applied consistently, no matter which investigatory power is used to obtain the information. The new legislation should be amended to rectify this inconsistency.
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Providing protections for legally privileged communications on the face of the Bill. The revised Bill includes explicit protections for legally privileged communications in relation to interception and equipment interference.
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Point listened to.
Joint Committee: (Recommendation 16) We agree with the intention of the Government’s policy to seek access to protected communications and data when required by a warrant, while not requiring encryption keys to be compromised or backdoors installed on to systems. The drafting of the Bill should be amended to make this clear.
Joint Committee: (Recommendation 17) The Government still needs to make explicit on the face of the Bill that CSPs offering end-to-end encrypted communication or other un-decryptable communication services will not be expected to provide decrypted copies of those communications if it is not practicable for them to do so. We recommend that a draft Code of Practice should be published alongside the Bill for Parliament to consider
Science and Technology Committee: In tightly prescribed circumstances, law enforcement and security services should be able to seek to obtain unencrypted data from communications service providers. They should only seek such information where it is clearly feasible, and reasonably practicable, and where its provision would be consistent with the right to privacy in UK and EU law. The obligations on potential providers of such data should be clarified in the proposed Codes of Practice to be published in draft alongside the Bill later this year. (Paragraph 42)
Science and Technology Committee: There is some confusion about how the draft Bill would affect end-to-end encrypted communications, where decryption might not be possible by a communications provider that had not added the original encryption. The Government should clarify and state clearly in the Codes of Practice that it will not be seeking unencrypted content in such cases, in line with the way existing legislation is currently applied. (Paragraph 43)
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The Government did not answer two central parts of these recommendations. First, it did not enter anything about “end to end” encryption. It would theoretically be feasible for a communication company to break this, but it would jeopardize the entire system. The Science committee wanted this made clear and the government did not respond. Second, while the government added in the need to look at cost and feasibility, it did not clarify what that threshold would be, still leaving questions about when and where tech companies will need to provide encryption keys.
Amending the language on encryption in the Bill on technical capability notices. The revised Bill makes clear that obligations to remove encryption from communications only relate to electronic protections that have been applied by, or on behalf of, the company on whom the obligation has been placed and or where the company is removing encryption for their own business purposes. The Bill has also been revised to make clear that where an obligation is placed on a CSP which includes the removal of encryption, the technical feasibility, and likely cost of complying with those obligations must be taken into account.
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Joint Committee: (Recommendation 28) We recommend that the Home Office should produce its case for bulk personal datasets (BPDs) when the Bill is published.
Joint Committee: (Recommendation 23) We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.
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Government: longside the Bill, the Government has published an operational case for the bulk powers in the Bill. This provides greater information about the bulk powers in the Bill, how they are used and why they remain essential. The security and intelligence agencies have also made available to the ISC further classified information on the necessity of bulk powers.
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They did provide a justification, which consisted of detailing the need to be able to cross match gun owners with known terrorists.
