My Lords, I shall begin by addressing the amendments which relate to the serving of warrants and the giving of notices to overseas telecommunications operators. The first, Amendment 63, appears to remove the ability to serve a warrant outside the United Kingdom when the United Kingdom has entered into an international agreement with the country where that person or company is established. Perhaps that was not the intention. It seems counterintuitive to prohibit the service of a warrant on a person outside the United Kingdom when they are based in a territory with which the United Kingdom has an agreement which expressly provides for the service of warrants overseas. I wonder whether it was intended to do the opposite and provide that a warrant might be served on a person outside the UK only pursuant to a relevant international agreement.
In any event, it is important to remember that, although discussions are ongoing, there is currently no international agreement between the United Kingdom and the United States. As the Home Secretary has previously stated, the UK and United States Governments have begun considering a framework under which US-based communications service providers could disclose data directly to the United Kingdom for serious criminal and counterterrorism investigations in response to a UK order requesting the content of the communications—that is, a warrant. We are eager to press forward with developing an agreement. In response to the observations of the noble Lord, Lord Rosser, I can say that timetabling will depend on changes to the relevant US domestic legislation, a matter to which the United States Attorney-General recently referred. But it is not possible to give a more exact timetable so far as that is concerned.
Taking up the point of the noble Lord, Lord Paddick, of course it would be beneficial to all concerned that we should achieve some form of international agreement with regard to these matters, and it is hoped that the agreement with the United States might provide a template to take this forward. But let us accept that we are at a very early stage.
It is important to be clear that any company complying with warrants under an international agreement will not face enforcement action. I am perfectly content to put that important point on record for the noble Lord, Lord Rosser, who opened by explaining that these were essentially probing amendments, and I appreciate that. However, it is also important to explain that such agreements will not by themselves require a company to comply with a United Kingdom warrant. Even when an international agreement is in place, it remains vital that the Bill continues to exert extraterritoriality in relation to interception warrants. This also provides the legal certainty that some companies have been asking for.
Amendments 64 and 65, made to Clause 41, would set out that it would not be reasonably practicable for an operator outside the United Kingdom to comply with a warrant if that involved acting contrary to any
laws or restrictions in the jurisdiction in which its principal office is located. These amendments are unnecessary because subsection (5) already makes it clear that, in determining whether it is reasonably practicable for a company to comply with a warrant, any requirements or restrictions under the law of the territory in which it is based must be taken into account. I do not want to quote the matter at length, but I will just refer to the relevant provision. In Clause 41(5), the matters to be taken into account include,
“any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and … the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions”.
Therefore, it appears that this issue is already addressed. Indeed, what is said in the Bill replicates the existing position under the Regulation of Investigatory Powers Act 2000, as amended by the Data Retention and Investigatory Powers Act 2014.
I believe that the intention of Amendment 65A is to provide additional protections for staff employed in the United Kingdom by telecommunications companies whose principal offices are established overseas. Again, this additional language is unnecessary, and I will seek to explain why. In respect of interception warrants, the Government have already amended the Bill in response to concerns from overseas companies to make it clear that a warrant must be served in such a way as to bring the contents of the warrant to the attention of a person who is capable of providing assistance in relation to it. Clearly, an employee based in the United Kingdom who has no access to relevant information would not be such a person, as they would not be capable of providing the assistance required. The concern that enforcement action will be taken against junior local employees is also misplaced, since it is the telecommunications operator, rather than any individual, who is subject to the duty to provide assistance. I also make the point that it would not be in the interests of the relevant agency to serve a warrant or a notice in such a way that meant it could not be complied with quickly and efficiently. But the broader point is that if there is a conflict between United Kingdom law and the internal authorisation processes of an individual company, then of course United Kingdom law must always take primacy.
Amendments 104 and 105 would permit a person not to comply with a technical capability notice if the notice would require the person to act in a way contrary to any law or restriction in their country or territory. This amendment reads across provisions from other parts of the Bill—those relating to interception warrants and targeted communications data requests, as the noble Lord, Lord Rosser, noticed—but it does so inappropriately.
9 pm
Any conflict of law issues will arise in taking steps to give effect to a warrant. It is appropriate that the provisions for taking into account such conflicts are included in the Bill in relation to the provisions which allow a warrant to be enforced against a person outside the United Kingdom. I stress that it is a warrant, not the technical capability notice. The Bill provides that
laws in the jurisdiction in which a company is based must be taken into account when deciding whether to impose an obligation by serving a warrant.
Giving a technical capability notice to an operator simply requires it to maintain a technical capability. Technical capability notices can be used only to impose requirements to provide assistance in relation to warrants or authorisations provided for elsewhere in the Bill. Conflict of law issues are very unlikely to arise in that context because developing and maintaining the capability does not of itself authorise the acquisition of data.
In addition, Clause 226 requires that before giving a technical capability notice to a person, that person must be consulted. In the unlikely event that a conflict of law issue arose in the giving of a notice, this would be revealed during the consultation. The Secretary of State is expressly required by Clause 228 to take into account the technical feasibility, likely cost and any other effect on the person of complying with the notice. Clause 226(4) makes clear that a notice can be served only if it is reasonable to impose an obligation and practicable for the relevant operator to comply. It would of course not be reasonable to impose an obligation that could not lawfully be complied with.
I will address the proposed amendments to Clauses 54 and 123 with respect to reasonable excuse. These amendments would amend the duty not to make an unauthorised disclosure so that it would be permitted if there was a “reasonable excuse”. I hope I can reassure noble Lords that the concerns this amendment seeks to address are already met by the Bill. To begin, I should explain why the Government have a policy of not revealing the existence of a warrant.
If they are to remain effective, the techniques and capabilities available to the agencies must be protected. A disclosure of such details would cause damage to the ability of the authorities to keep us safe. Clauses 54 and 123 set out those people who are required not to make unauthorised disclosures under this Bill. Clauses 55 and 124 provide the limited circumstances where disclosure is already permitted. It cannot be right for the Bill to allow a person to release sensitive information into the public domain and then subsequently argue that they had a “reasonable excuse”. Once the information is released into the public domain—be it with good or bad intentions in mind—it cannot be withdrawn and the consequences cannot be undone.
Of course, it is absolutely right that cases of wrongdoing or impropriety are made public and that justice is done in such instances. That is why we have provided in the Bill for an Investigatory Powers Commissioner, with the power to look into any aspect of the use of these powers and to take such action as he or she sees fit. It is much better that a senior, impartial judge should take a view on what is in the public interest than, say, a junior official or an employee of a telecommunications operator.
Nevertheless, we acknowledge that it is important that such people can raise concerns without fear of prosecution, which is why Clause 212—which we will get to when we consider Part 8—also provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill. Combined, these clauses
help to maintain an important principle that helps the agencies to protect their techniques and, in turn, to protect us.
Amendment 25A would insert the proposed new clause on public reporting. These amendments would provide for a person who is subject to a warrant or notice to report certain details of the warrants and notices to which they have given effect. Clause 55 already provides for the Secretary of State to make regulations, setting out the information that a postal operator or a telecommunications operator may disclose in relation to the number of interception and equipment interference warrants to which an operator has given effect. The regulations will set out the bands and timeframes within which an operator may publish information about warrants. It is my view that the level of detail required is appropriate for such conditions to be provided for in regulations and not on the face of the Bill.
This amendment would also undermine the prohibition on operators disclosing the existence and contents of bulk communications data acquisition warrants and data retention notices; I cannot support this proposal. These authorities are kept secret because revealing their existence could damage national security and hamper the prevention and detection of crime. Criminals may change how they communicate in order to use a provider that is not subject to a publicly avowed government requirement. That is why we need to be very careful about any exemptions to prohibitions on revealing such sensitive information.
I recognise that there is a careful balance to be struck between protecting sensitive information and the need for transparency regarding the use of investigatory powers, but I consider that this balance is achieved by the provisions set out in this Bill, including those relating to public reporting at Clause 55. The Government will continue to work closely and constructively with the telecommunications operators on this matter, including by consulting them on the content of the draft regulations, in order that we may provide for an approach that works for all concerned. For the reasons I have set out, I invite the noble Lord to withdraw the amendment.