IPBill Public Bill Committee – what happened?
Thirteenth and Fourteenth Sittings (28 April)
Transcripts of both sittings: 13th, 14th
The amendments tabled for these sessions discussed:
IP Commissioner and other Judicial Commissioners
Keir Starmer – speaking for Labour – brought to the table that the appointment of Judicial Commissioners should not follow the full Judicial Appointments Commission process. Starmer pointed out that High Court judges have already been through the JAC and that there is no need for their competencies to be retested.
These amendments also tackled the question of which judges/judicial commissioners should oversee the function of the Secretary of State. Keir Starmer, supported in this instance by the Minister for Security John Hayes, emphasized that it would be troubling if the Prime Minister makes the appointment by only consulting the Lord Chief of Justice. The amendment was withdrawn to be discussed at a later stage.
John Hayes raised a question of hierarchy regarding the involvement of the Prime Minister (PM) and Lord Chancellor in the appointments process. Originally, the amendments would remove the PM’s involvement in the appointment process and would be substituted by the Lord Chancellor, which Hayes argued would alter the Cabinet’s hierarchy. Keir Starmer agreed with the raised point and suggested it should be the Lord Chief Justice who appoints judicial commissioners.
SNP advocated for PM’s involvement in the process.
Main oversight functions
The amendments deal with consistency of oversight functions. Joanna Cherry – speaking for the SNP – highlighted that the obligation to remove electronic protections or encryption can be issued as either a national security notice or as a technical capability notice by the Secretary of State. The amendments she put forward would make sure the judicial commissioners have responsibility for oversight of national security notices and technical capability notices. This amendment would remove the Secretary of State to modify the functions of the IP Commissioner and Judicial Commissioners.
This amendment was not agreed on.
Additional functions
Joanna Cherry introduced amendments regarding additional functions that would give the Judicial Commissioners power to refer issues of concern to the Investigatory Powers Tribunal without having to rely on a complaint being made. John Hayes pointed out that this would not be necessary since judges will be able to advice on when to make a complaint.
The amendments were withdrawn.
Fifteenth and Sixteenth Sittings (3 May)
Transcripts of both sittings: 15th, 16th The amendments tabled for these sessions discussed:
National Security Notices
Keir Starmer presented amendments that would subject the national security notices to the double lock mechanism, meaning that they would also need to go before the Judicial Commissioner.
Joanna Cherry criticised the lack of national security definition. The Solicitor General responded to her criticism saying that
“Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country.”
These amendments were not agreed on.
Maintenance of Technical Capability
Keir Starmer raised concerns that operators might be called upon to comply with a notice from the Secretary of State. Compliance would relate to removing encryption; however, Keir Starmer described this power as too wide ranging, especially after taking into consideration that provisions for notices are merely set out in the Code of Practice and not in the Bill itself. Starmer argued the amendments tabled would provide legal certainty for industry that the government will not require backdoors to be installed into products and services. Further, the amendments would require the Secretary of State to provide evidence that the notice is justified.
The Solicitor General made a point saying that encryption is better outlined in the secondary legislation than primary legislation on the grounds it can still be changed if it evolves.
Joanna Cherry brought forward several points that resonate with the latest international developments regarding the Apple-FBI case. The Bill would require that the recipient of a notice must comply with it but must not disclose either its existence or its contents. The Solicitor General clarified that the Apple-FBI case in the UK setting would not be subjected to this provision because Apple does not qualify as a communication service provider which the clause relates to. However, the clause defines communication service providers as “relevant operators” and it is likely that Apple would qualify as a “relevant operator”.
The amendments were withdrawn.
Warrants: notification by Judicial Commissioner
Joanna Cherry brought forward amendments relating to equipment interference (hacking). The amendments require that the targets of equipment interference are notified after the act. At the moment, the targets are only notified if hacking was carried out by error of a public authority. The notice does not cover hacking by the communication service providers.
The amendment was not agreed on.
This was the last Public Committee sitting. The IP Bill will now go through Report Stage followed by Third Reading of the Bill in the House of Commons. The dates have not been announced yet but most likely will take place in June.
The updated version of the Bill showing changes made in the Committee is available here.