Parliamentary Debates House of Commons Official Report General Committees

PARLIAMENTARY DEBATES HOUSE OF COMMONS OFFICIAL REPORT GENERAL COMMITTEES Public Bill Committee INVESTIGATORY POWERS BILL Sixteenth Sitting Tuesday 3 May 2016 (Evening) CONTENTS CLAUSES 223 to 231 agreed to. Schedule 9 agreed to. Clause 232 agreed to. Schedule 10 agreed to, with an amendment. Clause 233 agreed to. New clauses considered. Bill, as amended, to be reported. Written evidence reported to the House. PBC (Bill 143) 2015 - 2016 No proofs can be supplied. Corrections that Members suggest for the final version of the report should be clearly marked in a copy of the report—not telephoned—and must be received in the Editor’s Room, House of Commons, not later than Saturday 7 May 2016 © Parliamentary Copyright House of Commons 2016 This publication may be reproduced under the terms of the Open Parliament licence, which is published at www.parliament.uk/site-information/copyright/. 663 Public Bill Committee3 MAY 2016 Investigatory Powers Bill 664 The Committee consisted of the following Members: Chairs: †ALBERT OWEN,NADINE DORRIES † Atkins, Victoria (Louth and Horncastle) (Con) Kyle, Peter (Hove) (Lab) † Buckland, Robert (Solicitor General) † Matheson, Christian (City of Chester) (Lab) † Burns, Sir Simon (Chelmsford) (Con) † Newlands, Gavin (Paisley and Renfrewshire North) † Cherry, Joanna (Edinburgh South West) (SNP) (SNP) † Davies, Byron (Gower) (Con) † Starmer, Keir (Holborn and St Pancras) (Lab) (Pendle) † Fernandes, Suella (Fareham) (Con) † Stephenson, Andrew (Con) † Stevens, Jo (Cardiff Central) (Lab) † Frazer, Lucy (South East Cambridgeshire) (Con) † Warman, Matt (Boston and Skegness) (Con) †Hayes,MrJohn(Minister for Security) † Hayman, Sue (Workington) (Lab) Glenn McKee, Fergus Reid, Committee Clerks † Kinnock, Stephen (Aberavon) (Lab) † Kirby, Simon (Brighton, Kemptown) (Con) † attended the Committee 665 Public Bill CommitteeHOUSE OF COMMONS Investigatory Powers Bill 666 do more to make the commitment clear. I hope that that Public Bill Committee gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful Tuesday 3 May 2016 to her for raising them. The aim of the amendment appears to be to prevent a public authority from obtaining third-party data and to (Evening) prevent a communications service provider from being required to retain those data. I am not sure that the [ALBERT OWEN in the Chair] amendment achieves that desired outcome. It would remove third-party data from one element but not from Investigatory Powers Bill all elements of the definition of communications data. I do not think there is any debate about the need to get the definition of communications data right, but it must Clause 223 correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle TELECOMMUNICATIONS DEFINITIONS of communications data is clear; changing the definition so that the classification of data changes depending on 7pm which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not Joanna Cherry (Edinburgh South West) (SNP): I beg intend. to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert— My first argument is that the clause is not the right ‘(i) is about an entity to which a telecommunications service is place to prevent public authorities from obtaining third- provided by that telecommunications operator and relates to the party data or to prevent a CSP from being required to provision of that service,” retain them. Clause 53(5)(c) makes it clear that a This amendment clarifies the definition of communications data, communications data authorisation can provide for the limiting requirements on organisations to be providing data about the obtaining of third-party data where that is reasonably services that they supply. practicable for the communications service provider. It is a pleasure to welcome you back to the Chair, That maintains the existing provision under the Regulation Mr Owen. This is an amendment to the interpretation of Investigatory Powers Act 2000. Where a CSP holds clause dealing with telecommunications definitions, in communications data, whether in relation to its services particular subsection (5), which deals with the definition or those provided by a third party for its business of communications data. The amendment would replace purposes, or where it is able to obtain them, they should subsection (5)(a)(i) with the purpose of clarifying that be available to the public authorities for the statutory the definition of communications data applies to the purposes in the Bill. We should not put them out of the providers of the relevant telecommunications services, reach of law enforcement agencies, based solely upon rather than allowing an organisation to be required to which company holds the information. provide data about services it does not provide. Without I suspect that the hon. and learned Lady’s intent may the amendment, the definition of communications data be to stop a service provider being forced to comply is flawed because it does not tie the data to the provider with an unreasonable requirement relating to third-party of the telecommunications service and therefore seems data—[Interruption.] I am grateful to her for indicating set to encompass third-party data, which I know the her assent. I assure her and the Committee that, in my Home Office denies is the intent. view, the Bill already does that. A provider is required The amendment would make two small changes. to comply with a request for comms data, including First, it specifies that the telecommunications service third-party data, only where reasonably practicable for has to be provided by that telecommunications operator—in them to do so. There is no need to impose a further other words, it avoids pulling in third-party data. Secondly, restriction on that basis. it specifies that the data relate to the particular service I recognise the sensitivities of third-party data, but I provided and not to a different one. I will be interested am afraid that a blanket restriction on its acquisition is to hear what the Solicitor General has to say about this not the way forward. We consider that the Bill and the amendment, which seeks to clarify and tighten up the code of practice strike the right balance. On the basis of clause. my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw The Solicitor General (Robert Buckland): It is good to the amendment. see you back in your place, Mr Owen. I look forward to a fruitful session. Joanna Cherry: I beg to ask leave to withdraw the amendment. I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in Amendment, by leave, withdrawn. particular third-party data. I do not want to rehearse Clause 223 ordered to stand part of the Bill. the arguments about why we consider the code of Clause 224 ordered to stand part of the Bill. practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Clause 225 Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling GENERAL DEFINITIONS on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message Joanna Cherry: I beg to move amendment 870, in loud and clear, so we are considering whether we could clause 225, page 177, line 11, at end insert— 667 Public Bill Committee3 MAY 2016 Investigatory Powers Bill 668 ‘(a) an advocate, Joanna Cherry: I am interested in the Solicitor General’s (b) a barrister, point about legal executives or paralegals. Does he (c) a solicitor.’ agree that, in so far as communications with such individuals would require protection, they would be This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171. protected by subsection (1)(b)(ii), which specifies I am grateful to the Law Society of Scotland for drawing “communications made in connection with, or in contemplation my attention to the necessity of this amendment. When of, legal proceedings and for the purposes of those proceedings”? we debated the clauses on legal professional privilege—we have done so on a number of occasions during this The Solicitor General: That is a good point, but there Committee’s proceedings—I drew attention at an early is a danger that we overcomplicate the situation and stage to the Law Society of Scotland’s evidence to the end up restricting what is commonly understood as the Joint Committee. It gave evidence alongside the Law important legal professional privilege that exists between Society of England and Wales and expressed its shared lawyer and client. Instead of overcomplicating it, it and serious concerns about the requirement to provide would be far better to keep maters straight and reflect for the protection of legal professional privilege on the the position provided for in the Police and Criminal face of the Bill. It is pleased that the Government have Evidence Act 1984, which applies here in England and taken steps to do that, although it is not happy with the Wales, the Police and Criminal Evidence (Northern extent of the protection provided. That is perhaps a Ireland) Order 1989 and the definitions relating to debate for another day. Scotland. The other statutes for England, Wales and The purpose of the amendment is to deal with the Northern Ireland do not define “professional legal adviser” definition of items subject to legal privilege at line 29, and I do not see a compelling need to do so here. As I on page 175.

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