Legislative update 3: The Investigatory Powers Bill

Richard Rosser on developments so far in the government’s latest legislative attempt to balance collective security and individual privacy

With the Investigatory Powers Bill now halfway through its House of Lords Committee stage, Labour has achieved progress on a number of issues.

One key concern was the setting of a threshold to the acquisition of Internet Connection Records (ICRs). We worked with the government in the Commons, leading to agreement on a threshold relating to the prevention and detection of serious crime. Essentially, this means that ICRs can only be acquired where an offender could be sentenced to at least six month’s imprisonment, or for other crimes like stalking and harrassment. Plus, where necessary, to locate a missing person.

Government amendments, as outlined in the Lords, mark a step in the right direction. But we also have doubts about a new ‘relevant crime’ threshold that could see ICRs used in connection with minor, non-serious crimes. That’s why we have offered Ministers further talks, and in fairness to them they are “open to discussions on this topic”. 

The issue of legal privilege has also been raised, with Labour names on amendments put forward by the Law Society and Bar Council. These asked for clarity on whether the authorities should be allowed to access information about confidential legal discussions, when there is no reason to suspect a crime but where other vital information might be needed to prevent one. Home Office Ministers have committed to consider this before Lords Report stage, when amendments might also be tabled.

We have also raised concerns on the matter of journalistic sources, suggesting that any powers affecting these should only be in exceptional and compelling circumstances (as with items subject to the aforementioned legal privilege). In the Commons, the government agreed to look at how to define ‘a journalist’ but with no developments so far, this is something else to be pursued at Report.

Labour has also tabled a series of Constitution Committee amendments. On the one hand to keep the Investigatory Powers Commissioner independent from the Home Secretary; on the other to ensure the government responds to that Committee’s report which will inform our later debates.

Other outstanding issues on the Bill include the recovery of compliance costs for communication service providers who have to implement the legislation. Ministers are committed to a 100% reimbursement but we await the detail of how they intend to reflect this. On protections for whistle-blowers meanwhile, we have highlighted the misuse of investigatory powers – with the government now adding a clause that means such individuals will not be subject to a consequent criminal offence or civil liability. (Although the wording as it stand does not yet adequately reflects this objective.) And following pressure applied by Labour at both ends of Parliament, the government has tabled further amendments in lieu to prevent the Bill being used to monitor trade union activity.

The remaining Committee days will take place when Parliament returns in September, with the focus on the findings of the independent review into the Bill’s most controversial area: the Bulk Powers Review. Led by David Anderson QC and due to report later this month, the conclusions will be crucial for our scrutiny. I for one hope that Ministers will work with us to ensure that this aspect of the legislation is both appropriate and fit for purpose.

Lord Richard Rosser is Shadow Home Office Minister in the House of Lords

Published 9^th August 2016