My Lords, I will speak to the government amendments in this group, Amendments 10 to 14.
The Investigatory Powers Act contains world-leading oversight arrangements and safeguards that apply to the use of investigatory powers. The Bill strengthens these to ensure that the oversight regime is resilient and that the Investigatory Powers Commissioner is able to carry out his functions effectively. These government amendments are designed to maintain this approach, and to tighten the drafting in certain areas to ensure that the scope of the measures in Part 3, in respect of communications data, cannot be interpreted more broadly than is intended.
I will start with government Amendment 12, which will ensure that there is clarity for telecommunications operators regarding their obligations to report personal data breaches relating to warrants issued under the IPA. The proposed new clause will also make provision for such breaches to be reported to the Information Commissioner and the Investigatory Powers Commissioner. This amendment will also ensure that the Investigatory Powers Commissioner has the ability to notify an individual affected by the personal data breach, if it is deemed to be in the public interest to do so and if the Information Commissioner considers the breach to be serious. Such a notification will inform an individual of any rights that they may have to apply to a court or tribunal in relation to the breach. This important amendment will bring much-needed clarity in respect of how personal data breaches committed by tele- communications operators are regulated, and ensure that there is a clear statutory basis for the Information Commissioner and the Investigatory Powers Commissioner to be notified of certain personal data breaches.
I move on to government Amendments 10 and 11. Amendment 11 adds Scottish Ministers to the list of parties, at Clause 9(5), who are to be notified by the Investigatory Powers Commissioner of the appointment of a temporary judicial commissioner. This must be as soon as practicable after any temporary judicial commissioner has been appointed. This will ensure that Scottish Ministers are kept abreast of crucial developments in the investigatory powers oversight regime. A similar requirement already exists in the Bill, which requires the IPC to notify certain persons, including the Secretary of State and the Lord President of the Court of Session, of an appointment of a temporary judicial commissioner.
Government Amendment 10 to Clause 8 allows the Investigatory Powers Commissioner to delegate to deputy Investigatory Powers Commissioners the power to approve decisions following the review of a notice. This brings this function in line with the commissioner’s other functions in the Act with regards to delegation and, as with those powers, allows for delegation in only when the commissioner is unavailable or unable.
I turn now to government Amendments 13 and 14, both of which concern communications data, which I will refer to as CD. Government Amendment 13 clarifies the extent of Clause 11 to ensure that its scope is not wider than intended. Section 11 of the IPA creates the offence of acquiring CD from a telecommunications operator without lawful authority. Clause 11 seeks to
carve out from the scope of Section 11 the sharing of CD between public authorities, where one of those authorities was a telecommunications operator.
This amendment to Clause 11 ensures that the public authority carve-out from the Section 11 IPA offence of acquiring CD without lawful authority does not go wider than intended. The new definition is based on the definition of public authority in the Procurement Act 2023. The previous definition was based on the definition of public authority in the Human Rights Act 1998. This latter definition could, in some circumstances, have created doubt over whether it included certain private sector telecommunications operators.
This amendment removes that doubt and clarifies that the public authority carve-out will apply only to telecommunications operators wholly or mainly funded by public funds—in other words, they are public authorities themselves. The IPA was designed to ensure that the acquisition of CD from private sector tele- communications operators for the statutory purposes set out in the Act was subject to independent oversight to safeguard against abuse. This amendment maintains this important safeguard in relation to private sector telecommunications operators.
I turn to government Amendment 14. It is critical that the legislation is absolutely clear on what constitutes CD and the lawful basis for its acquisition. Without this clarity, we risk placing CD that is crucial to investigators out of their reach. Government Amendment 14 therefore seeks to clarify that subscriber data used to identify an entity will be classed as CD.
This amendment is necessary as the existing Act creates a carve-out in the definition of CD to ensure that the content of a communication cannot be acquired under a Part 3 acquisition request. This reflects Parliament’s view during the initial passage of the IPA 2016 that the content of a communication is inherently more sensitive than the underpinning metadata: the “who”, “where”, “when”, “how” and “with whom” of a communication. Clause 12 amends the definition of CD in Section 261 of the Act to exclude certain types of data from the carve-out of content from the definition of CD. The effect of this is to include those data types within the definition of CD.
Government Amendment 14 restricts the effect of Clause 12 to ensure that it is not overly broad and cannot be applied to bring unintended, inappropriate types of data within the definition of CD. For example, the amendment will put beyond doubt that the content of recorded calls to contact centres or voicemails is not in scope of the amended CD definition and will not be accessible with an authorisation under Part 3 of the Act. The amendment to Section 261 does not affect the oversight function of the Investigatory Powers Commissioner’s Office, which continues to inspect and highlight any errors and provide prior independent authorisation for the acquisition of CD in most cases.
I hope I have convinced noble Lords of the necessity of these government amendments; I ask that they support them. I also hope that these amendments provide reassurance to noble Lords, ahead of the debate on this group, of the Government’s commitment to ensuring that the clauses in Part 3 are drafted as tightly as possible and with a proportionately narrow scope.
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