Investigatory Powers Bill (of parliament) paper approved by Council

Summary

A request was made for the Cabinet Office paper regarding the approval of a permissive extent clause for the UK Investigatory Powers Bill, which was fully disclosed to the applicant.

Key Facts

• The Cabinet Office submitted a paper to the Council of Ministers seeking approval for a permissive extent clause in the Investigatory Powers Bill.
• The Council considered and agreed to the paper in July, August, or September 2016.
• The Bill aims to update UK legislation on interception of communications for crime and terrorism detection.
• Privacy campaigners like Liberty have criticized the Bill as a 'Snooper's Charter'.
• The UK's Independent Reviewer of Terrorism Legislation concluded there is a proven operational case for bulk surveillance powers.

Data Disclosed

• 2017-01-17
• 2017-02-06
• July 2016
• August 2016
• September 2016
• February
• CAB000001
• 7 pages
• 1 document
• IM1 3PN
• 01624 686244
• 01624 685710

Data Tables (2)

Full Response Text

1

REFERENCE NUMBER: CAB000001

REQUEST UNDER THE FREEDOM OF INFORMATION ACT 2015 (“the Act”) Thank you for your written application received into this office on 20 January 2017 requesting the following information:
“The ‘Summary of Proceedings in the Council of Ministers’ from July, August and September 2016 states: ‘Investigatory Powers Bill (of Parliament) Council considered and agreed a paper submitted by the Cabinet Office seeking approval for a permissive extent clause to be inserted into the Investigatory Powers Bill (of Parliament)’ Please can you provide a copy of the papers referred to.” Response to your request
We are pleased to be able to provide the attached information as a response to your request Your right to request a review If you are unhappy with this response to your Freedom of Information request, you may ask us to carry out an internal review of the response, by completing a complaint form and submitting it electronically or by delivery/post to the FOI Co-ordinator, Cabinet Office, Government Office, Douglas, Isle of Man, IM1 3PN. An electronic version of our complaint form can be found by going to our website https://www.gov.im/about-the-government/freedom-of-information/freedom-of- information-review-request-january-1-2017/ , a paper copy can be requested by contacting the Cabinet Office direct.
Your review request should explain why you are dissatisfied with this response, and should be made as soon as practicable. We will respond as soon as the review has been concluded.
If you are not satisfied with the result of the review, you then have the right to apply for a review of decisions by the Information Commissioner, for a decision on; 1) Whether we have responded to your request for information in accordance with Part 2 of the Act; or 2) Whether we are justified in refusing to give you the information requested.

Government Office DOUGLAS Isle of Man IM1 3PN Tel: (+44) 01624 686244 Fax: (+44) 01624 685710 Website www.gov.im/co
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In response to an application for review, the Information Commissioner may, at any time, attempt to resolve a matter by negotiation, conciliation, mediation or another form of alternative dispute resolution and will have regard to any outcome of this in making any subsequent decision.
More detailed information on your rights to review is on the Information Commissioner’s website at: https://www.inforights.im/ Should you have any queries concerning this letter, please do not hesitate to contact me. Further information about Freedom of Information requests can be found at: www.gov.im/foi. CONFIDENTIAL 1

PAPER FOR COUNCIL OF MINISTERS

From Cabinet Office

Title Investigatory Powers Bill (of Parliament)
Purpose of the Paper:

To invite Council to agree that it is content for a permissive extent clause to be inserted into the Investigatory Powers Bill (of Parliament).

CONFIDENTIAL 2

Introduction

1. The purpose of the Investigatory Powers Bill (of Parliament)1 is to deal with the sensitive and potentially controversial issue of updating the United Kingdom’s legislation concerning the interception of communications and related matters for the detection and prevention of crime and terrorism in the modern electronic communications age, whilst minimising so far as possible the impact on the right to privacy of innocent people.

2. It is almost inevitable with this type of legislation that it will not please everyone. Privacy campaigners will argue that the legislation goes too far and/or there are insufficient safeguards. Law enforcement and national security bodies will argue that broad and flexible powers are needed for them to be able to operate effectively at a time when criminals and terrorists are as likely, or more likely, to communicate through various forms of social media as via telephone or email.

3. Some organisations, such as Liberty, have called the Bill a “Snooper’s Charter” and Liberty has said: “As the Investigatory Powers Bill has made its way through Parliament, the Government has been roundly and repeatedly criticised for failing to justify the bulk surveillance powers it contains. In February, the Bill’s Joint Committee called on the Government to produce evidence to support its claim that these unprecedented and disturbingly intrusive powers are needed – and demanded an independent assessment of that evidence.”2.

4. However, in August the UK’s Independent Reviewer of Terrorism Legislation, in respect of his recent Report on bulk data powers3 which are covered by the Bill, stated: “• Three of the powers under review (bulk interception, bulk acquisition of communications data and bulk personal datasets) are already in use across the range of MI5, MI6 and GCHQ activity, from cyber-defence, counter-terrorism and counter-espionage to child sexual abuse and organised crime. They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. After close examination of numerous case studies, the Review concluded that other techniques could sometimes (though not always) be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower. • The Report accordingly concludes that there is a proven operational case for the three powers already in use. It also concludes that there is a distinct (though not yet proven) operational case for the fourth power, bulk equipment interference. • But the pace of change is breathtaking. If they are to be satisfied that the use of these powers is necessary and proportionate, and that MI5, MI6 and GCHQ have done everything possible to minimise the privacy footprint of their activities, the Government and – in particular – the new Investigatory Powers

1 http://services.parliament.uk/bills/2016-17/investigatorypowers.html
2 https://www.liberty-human-rights.org.uk/news/blog/investigatory-powers-bill-government-has-set- review-bulk-powers-impossible-task
3 https://terrorismlegislationreviewer.independent.gov.uk/bulk-powers-review-report/
CONFIDENTIAL 3

Commission need to be fully and independently informed about the latest technological developments.”.

1. Although there may be differing views about the Bill and the need for all of its broad investigatory powers it is certainly the case that this Bill has been subject to a great deal of consultation (with it initially being issued as a draft Bill) and debate and a number of changes have been made to the Bill during its progression through Parliament to date4 to accommodate some concerns.

2. On 25 August 2016 the Home Office wrote to External Relations in the Cabinet Office in the following terms: “I am writing further to the letter you received in February of this year regarding the Investigatory Powers Bill.
   When we wrote to you in February, we offered the support of the Home Office in understanding the legislation and informing any consideration you were giving to your own legislation in this space. As we approach the final stages of the Bill’s passage through Parliament, we have been giving further thought to whether the Bill should make provision for it to be extended to the Crown Dependencies by Order. This would allow provisions in the Bill to be extended to your jurisdiction if and when you consider it appropriate to do so.
   I understand from MoJ colleagues that the Crown Dependencies have previously supported the inclusion of such provisions in UK legislation as it makes it simpler to update your laws subsequently. We are conscious that a wide range of jurisdictions are currently looking to update legislation in this field in order to keep pace with technological change and to reflect evolving case law.
   For that reason, and for the national security implications for the UK and your jurisdiction, I want to ask whether you would support the inclusion of a permissive extent clause in this instance. With apologies for the short deadline, I would be grateful for your views by 31 August given that there is limited time to make further amendments to the Bill.”

3. The Department of Home Affairs (DHA), Isle of Man Constabulary and the Attorney General’s Chambers have been consulted on this matter.

4. The Chief Constable advised as follows: “The view of the Constabulary is that the legislation contains a set of important and potentially very useful powers, which would be of considerable use to the Constabulary and to other agencies charged with investigating offences. When it becomes law the Island will fall even further behind the UK in terms of powers available to law enforcement agencies. There is already a significant gap.

4 The Bill had its 1st Reading in the House of Commons on 1 March 2016. Before the summer recess the Bill completed its passage of the Commons and has had its 1st and 2nd Readings in the House of Lords, and it began its Committee Stage. The Bill is scheduled to continue its Committee Stage on 5 September 2016. CONFIDENTIAL 4

Despite the attractiveness of the idea of extending the legislation (in whole or in part) to the Island, I do not believe that the practical benefits would outweigh the accompanying problems. The Bill requires the creation of an authorisation and scrutiny regime that would be beyond what exists currently. I am also unclear how in practical terms we would overcome this issue. In conclusion, therefore, I would welcome the modernisation of investigatory powers, but I do not see the extension of the Bill as offering a practical solution. I know that the Cabinet Office intends to update the Interception of Communications Act and I would urge that the approach to be taken to this is broader than a simple updating of what is already there. This would offer an opportunity to examine a range of UK legislation and determine its usefulness in our context.”

1. HM Solicitor General then commented: “I think we all recognise that our equivalent legislation (Interception of Communications Act 1988 and Regulation of Surveillance Act 2006) is in need of update. I have carefully read [the Chief Constable’s] email which I think rightly contemplates the difficulties which will be encountered once the provisions of the Investigatory Powers Bill /Act have application in the Island – and doubtless there will be resourcing issues once the provisions take effect here whatever the route of the legislation. I have discussed the matter with my drafting colleagues and we are reasonably comfortable with the UK’s suggestion of a permissive extent clause, it being my understanding that it would only be invoked when we wanted it to be (which would address [the Chief Constable’s] concern) – there is the view also that the intellectual capital invested in and the debate of the Bill in the UK Parliament is likely to be of such a standard as to result in a well-balanced Bill. Further, I suspect that the new administration may have the view that there is a lot of other legislation which would be required in priority to this.
   As against that, the subject matter is politically sensitive and some will argue that any legislation like this needs to be home-grown notwithstanding that I suspect that the new administration may have the view that there is a lot of other legislation which would be required in priority to this.”

2. Finally, having considered the previous two responses, the DHA, with the approval of the Minister, stated: “Having considered this matter and read the very helpful submissions of [the Chief Constable] and [HM Solicitor General] it is considered we should agree to the inclusion of a permissive extent clause. It is very much appreciated that the Bill is complex and that we would have to adapt it for the IOM purposes and this would be difficult.
   However, it is considered that there is no harm in including a permissive extent clause as it is believed a review of our existing statute is not likely to be dealt with within a reasonable timeframe and having such a clause would therefore give us the option to examine what parts of the UK Bill can be brought into force or adapted for the IOM purposes if this is deemed urgently necessary. The other important issue that needs to be considered is if the UK brings pressure on us to update our legislation for reasons of national security we have this option open to us to move more quickly. CONFIDENTIAL 5

In the event the clause was utilised, given the sensitivities of this statute when time allows we would aim to replace this with our own statutory instrument. We used the same argument in relation to Terrorism Legislation which was most helpful in the short term with our own Act now replacing the extended UK Bill.”

1. Although agreeing to the inclusion of a permissive extent clause in this Bill may raise some concerns locally, this provision would not be used without the express prior approval of the Isle of Man Government and also Tynwald approval for the principle of extension, for which a strong case would doubtless need to be made for the Motion to pass.

2. The concerns expressed by the Constabulary about the possible difficulties with extension of this legislation to the Island are understood and accepted. However, the modern standard form of permissive extent clause as adopted by Parliamentary Counsel is along the lines of: “Her Majesty may by Order in Council provide for any of the provisions of this Act to extend to the Isle of Man [, any of the Channel Islands or any of the British overseas territories] with or without modifications.”,
   and in such a provision the modification power is very broad – encompassing omissions, additions, adaptation and substitutions – with a view to allowing extended UK legislation to work in the IOM context.

3. Nevertheless, the amount of work that would be required to modify this UK legislation, or parts of it, for use in the Island should not be underestimated.

4. But bringing forward a new Act of Tynwald to make the Island’s legislation a fit-for- purpose balance between the legitimate need for interception and surveillance powers and the right to privacy would be a very significant undertaking, which would almost certainly require considerable resources. This is particularly the case if, as the Chief Constable suggests, that a “make do and mend” approach to updating the Island’s current Interception of Communications Act is not what is required. It is unclear when either the Cabinet Office or the DHA may have sufficient resources available to take forward this project or

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