Investigatory Powers Act 2016 (Remedial) Order 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Investigatory Powers Act 2016 (Remedial) Order 2023.

My Lords, this order was first laid before Parliament for consideration on 20 March 2023. It was laid again on 18 October 2023, and sat for 60 days. It was debated in the other place on 23 January 2024. As noble Lords will be aware, it is a top priority for the Government to maintain our national security and keep the public safe. The Investigatory Powers Act 2016 provides robust privacy safeguards in relation to investigatory powers.

The United Kingdom’s investigatory powers regime is world-leading and provides the international standard on transparency, privacy, redress and oversight to accompany the exercise of these critical powers. This House recently considered the Investigatory Powers (Amendment) Bill, on which noble Lords provided expert scrutiny. I am hopeful that today’s debate will be approached in the same spirit.

This instrument will make necessary and important amendments to the IPA following the May 2021 judgment from the Grand Chamber of the European Court of Human Rights in the case of Big Brother Watch and others v the United Kingdom, which I will refer to as BBW. The ruling from the Grand Chamber related to the United Kingdom’s bulk interception regime under the legislation which preceded the IPA—the Regulation of Investigatory Powers Act 2000. The Grand Chamber found that certain aspects of that regime were not compliant with Article 8 of the European Convention on Human Rights, on respect for private and family life, and Article 10, on freedom of expression. While most of the incompatibilities identified by the Grand Chamber were addressed through the introduction of the IPA, there was one outstanding issue which requires an amendment to the IPA. This relates to journalistic safeguards, which I will come to later.

I will first briefly explain how the bulk interception regime operates, so that it is clear how these additional safeguards will be applied. The main purpose of a bulk interception warrant is to acquire overseas-related communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material which is useful in support of operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes.

Section 154 of the IPA covers the journalistic safeguards for bulk interception. Presently, it requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained, following examination, for a purpose other than its destruction. There are additional safeguards in the interception code of practice. The code requires that the relevant intelligence agency seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination, in order to identify or confirm a source of journalistic information.

My Lords, I thank the Minister for his helpful introduction.

This SI concerns the selection for examination and retention of confidential journalistic material which has been collected under a bulk interception warrant. Big Brother Watch brought a challenge to the Regulation of Investigatory Powers Act 2000, the predecessor of IPA, and the courts found several incompatibilities with the ECHR. Most of those incompatibilities were resolved by the introduction of the IPA in 2016. One issue remained—where an intelligence agency seeks to select confidential journalistic material for examination obtained under a bulk interception warrant or identify sources of journalistic material, the selection criteria used should be subject to prior independent authorisation. Where they are found during the examination of bulk data, their retention must be independently authorised.

In its report on the draft version of this instrument, the JCHR made three recommendations. Two have been accepted by the Government and integrated in this SI. However, the Government have not fully accepted the third recommendation, which was that security agencies engage with the Investigatory Powers Commissioner so that they can review journalistic material which had been retained before this SI is implemented. The Government responded that notification of the IPC is already required for an application for the retention of confidential journalistic material and that a judicial commissioner also must consider the application. Additionally, the IPC audits statements submitted for retention applications. However, if the Government accept that there is a need to change the law, surely they accept that there is a need to create an additional review in cases that will not be captured by the new regulations?

I have some questions which may be helpful for those who read these proceedings. Can the Minister explain why these changes have not been brought about as part of the Investigatory Powers (Amendment) Bill, given that it is still going through Parliament? New Sections 195 and 195A were inserted into the Investigatory Powers Act on Report in this House. They create additional safeguards for journalistic material for bulk equipment interference. Why is this being introduced separately? Can the Government provide more details on why they have not fully accepted the third recommendation of the JCHR?

I thank the noble Lord for his participation and support in the debate today. As I set out earlier, the changes that we are seeking to make to the Investigatory Powers Act will bring the bulk interception regime in line with the requirements of the European Court of Human Right’s Grand Chamber judgment in the case of Big Brother Watch. As I set out, it will ensure that the UK meets its obligations under Article 10 of the convention concerning confidential journalistic material and sources of journalistic material. Prior independent authorisation will be required where the purpose of the use of criteria to select material for examination is to identify confidential journalistic material or to identify or confirm a source of journalistic material. Prior independent authorisation will also be required for the retention of such material for purposes other than its destruction.

The noble Lord asked why this amendment was not taken forward as part of the Investigatory Powers (Amendment) Bill. That Bill was announced in the King’s Speech on 8 November 2023 and was introduced into the House of Lords on the same day. The Home Office was not able to pre-empt the contents of the King’s Speech and there was no guarantee that the Bill would be brought forward in the fourth Session. The judgment in the BBW case was handed down in May 2021 and, as a considerable time has passed and with no guarantee of a suitable legislative vehicle, the Home Office felt it was necessary to remedy the incompatibility as soon as possible. A remedial order was therefore the most appropriate course of action; essentially, it was timing.

The noble Lord, Lord Coaker, asked about the Joint Committee on Human Rights requesting IPCO to order a review of material selected for examination. Following the JCHR’s recommendation, the department engaged with IPCO to determine whether a review of any journalistic material which is being retained or remains retained is required in accordance with Article 10. I cannot really improve on what I said earlier. IPCO’s view was that it already had a process in place to apply a public interest test for all retained confidential journalistic material, so in the light of that, the department, IPCO and the operational community did not feel it necessary to propose that IPCO undertake another review of confidential journalistic material, as this will already occur as part of the current process.

As regards the urgency provision, when reading the BBW judgment with other case law, it is clear that the court was not seeking to exclude urgency procedures where there are appropriate safeguards. On the contrary, it was confirming that, with the appropriate safeguards, the use of an urgency procedure is compatible with the convention, so it would not be practical to implement a 24/7 process for urgent authorisations. The safeguards ensure that if the judicial commissioner does not approve the activity, it has to cease.

These urgency procedures were not part of the initial remedial order because the introduction of the urgency provision was deemed critical when it was raised as a representation during the first 60 days as it would provide extra resilience for operational requirements. If there was no urgency provision, there would be a situation where it was necessary to use search criteria that related to journalistic material and all sources in order to protect life or prevent serious harm, but it was outside of the standard working hours, so the result of this could be disastrous, as it could lead to loss of life, serious harm or lost intelligence collection opportunities. Therefore, in the interests of national security and in threat-to-life situations, there must be a process for authorising activity outside these periods. The Home Office engaged with IPCO and UKIC ahead of laying the remedial order in March 2023, and the requirement for an urgency procedure crystallised only during the first 60-day period and was deemed necessary for operational agility.

The noble Lord, Lord Coaker, asked what we mean by “a senior official”. It basically means a senior civil servant. I am not quite sure what the grade is. I believe it is deputy director or above, but if I am wrong, I will come back and let him know.

I know it sounds like dancing on the head of a pin, but what “senior” means is quite important, so I ask the Minister to clarify that.

I take the point. I absolutely will clarify it, if possible.

I would love to read the Committee my last answer, but I cannot read the writing, so I am sorry, and I apologise to whoever wrote it. Whatever it says, I will write to the noble Lord—or, rather, type—when I have deciphered it. I am very grateful for his contribution in this debate. As I set out, the changes we are seeking to make will ensure that the UK’s bulk interception regime meets its obligations under Article 10 of the convention and strengthens existing safeguards for journalists. I therefore commend this order to the Committee.

Motion agreed.

Committee adjourned at 6.03 pm.