My Lords, my noble friend Lady Hamwee and I have put our names to Amendments 1 and 2. Parliament’s Intelligence and Security Committee have said that privacy should be at the heart of the Bill. Although the Government have made some attempt to put an overriding privacy clause at the beginning of the Bill, we feel that that does not go far enough. The noble and learned Lord, Lord Keen of Elie—in a letter to the noble Lord, Lord Rooker, dated 8 July—spells out the importance of the 10 tests for the intrusion of privacy which the RUSI panel that looked into investigatory powers came up with. Amendment 1 attempts to put those 10 tests for the intrusion of privacy in the Bill.
Although one might consider some of the principles to be obvious, such as “rule of law”, “necessity” and “proportionality”, there are other important elements of the 10 tests—in particular, “restraint”, as it should never become routine for the state to intrude on the lives of its citizens; “transparency”, as it must be evident how the law applies to the citizen if the rule of law is to be upheld; and “multilateral collaboration”, as government policy on intrusion should be capable of being harmonised with that of like-minded open and democratic Governments.
In the letter to which I have referred from the noble and learned Lord, the Government set out what I consider to be a rather optimistic view of how the Bill complies with the 10 tests. We will see, over the course of Committee, how we on these Benches do not share the noble and learned Lord’s optimism about how the Bill actually complies with them. As I said just now, we believe that the privacy aspects of the Bill need to
be enhanced, in particular to increase the regard that people have to the Human Rights Act in implementing the Bill.
Section 46 of the Counter-Terrorism and Security Act 2015 provides for a Privacy and Civil Liberties Board. This is already in legislation—it just has not been enacted by the Government—and we believe that it could also strengthen the privacy elements. We support the additional safeguards for confidential journalistic sources and material. We are concerned about how wide so-called targeted interception warrants can be, going beyond simply named individuals to organisations and even groups of organisations.
We are also concerned about the whole issue of the so-called double lock. Why, in non-contentious law enforcement cases, does there need to be any involvement by the Secretary of State at all? Why is there inconsistency between intelligence services’ equipment interference warrants, where there is a double lock, and law enforcement equipment interference warrants, where the Secretary of State is not involved at all, despite equipment interference being more intrusive than interception? We are concerned about how judicial review principles, which judicial commissioners are supposed to apply to decisions of the Secretary of State, can apply if only one side of the argument is present, because the applicant for the warrant puts forward the case for the issuing of the warrant and there is nobody arguing against it.
There is judicial authorisation of interception warrants in all “Five Eyes” countries and international co-operation—as I have just indicated from the 10 principles —is extremely and increasingly important. To ensure that there is co-operation between the UK and other countries, particularly the United States, proper judicial authorisation, not simply judicial review, should be an important part of the Bill.
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We support the additional safeguards to protect clients’ consultation with their lawyers. We are concerned about how warrants can be modified—in some cases significantly—without reauthorisation. In some cases, even the person who originally applied for the warrant can alter the warrant themselves. I remember, as a young constable, being a guide for the special patrol group, and we went to execute a drugs warrant in a terraced house in a row of squats. When the only thing of interest we found in the premises that we raided was a six-foot metal penguin, the officers simply changed the address on the warrant to the house next door, and then raided that one. Such alteration of warrants appears, potentially, to be allowed under this Bill.
We are concerned about the interception of communication in psychiatric hospital situations, and we need to explore the possibility of admitting intercept evidence in court, while recognising the importance of making sure that secret methods of interception are kept secret. We also need to explore the possibility of whether, in certain circumstances, the product of interception might be given in evidence.
We do not believe that the current legal ban on the Secretary of State’s admitting the existence of a warrant, let alone being held to account for authorising it,
should present a blanket excuse for not being able to address Parliament on a particular warrant if she feels it necessary. One argument for having Secretaries of State authorising interception warrants is that Ministers can be held to account by Parliament, whereas judges cannot, and yet it is—under the terms of the Bill—an offence for the Secretary of State even to admit that a warrant is in existence, let alone what the content of that warrant is. We question the degree of accountability there can be in those circumstances.
For a whole range of reasons, we oppose the collection of internet connection records and their examination by law enforcement. We believe that the operational cases that the Government have published are unconvincing and that the considerable intrusion into privacy is disproportionate to the benefits to law enforcement. We believe that internet connection records are not necessary in the case of serious crime or in the case of terrorism because the security forces can help law enforcement. Those forces—MI5, MI6 and GCHQ—say that they do not require internet connection records because they can acquire the information by other means. The collection of data by internet connection records can also be easily avoided. The likely result is that serious criminals—for example, those involved in child sexual exploitation—will easily be able to avoid their internet connection records coming into the hands of law enforcement and only the data of innocent individuals and minor criminals will be collected.
Although there is some debate over what the real costs are going to be to internet service providers, it is likely to be considerable. In his summing up of the debate on Second Reading, the noble and learned Lord, Lord Keen, said that he did not know where our estimate of a billion pounds had come from, but when we come to the discussion, we will go into detail about how we arrive at that figure. As I said on Second Reading, the creation and retention of internet connection records will create vast quantities of highly sensitive personal—