Investigatory Powers Bill (Third sitting)
Tuesday 12th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
The Chair
We now begin line-by-line consideration of the Bill. Would everyone please ensure that all mobile phones and other electronic devices are switched into silent mode?
We first consider a motion to amend the programme motion agreed by the Committee on 24 March. The motion is on the amendment paper in the Minister’s name. I remind Members that the Standing Orders provide that a Minister must make such a motion and that if any member of the Committee signifies an objection, the proceedings on the motion will lapse. I call the Whip to move the motion.
Ordered,
That the Order of the Committee of 24 March 2016 be varied so that the Committee shall meet at 4.30 pm and 7.00 pm on Tuesday 3 May instead of at 9.25 am and 2.00 pm on that day.—(Simon Kirby.)
The Chair
I should like to tell Members that, as a general rule, I and my fellow Chair do not intend to call starred amendments. The required notice period in Public Bill Committees is three working days, therefore amendments should be tabled by the rise of the House on Monday for consideration on Thursday and by the rise of the House on Thursday for consideration on the following Tuesday.
The selection list for today’s sittings is available in the room and on the website. It shows how the selected amendments have been grouped for the debate. Amendments grouped together are generally on the same, or a similar, issue. A Member who has put their name to the leading amendment is called first. Other Members are then free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate I shall call again the Member who moved the leading amendment and, before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendments or new clauses in a group to a vote, they need to let me know. I shall work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments.
Please note that decisions on amendments do not take place in the order in which they are debated but in the order in which they appear on the amendment paper. In other words, the debate occurs according to the selection and grouping list. Decisions are taken when we come to the clause that the amendment affects. New clauses are decided after we have finished with the existing text, so after consideration of clause 232. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules, following the debate on the relevant amendments. I hope that that is helpful.
Clause 1
Overview of Act
Question proposed, That the clause stand part of the Bill.
The Minister for Security (Mr John Hayes)
I welcome you to the Chair, Ms Dorries. It is a delight to serve under your stewardship. I also welcome all members of the Committee.
Clause 1 provides an overview of the Bill and, for that reason—and with your indulgence, Ms Dorries—it is perhaps worth my setting our consideration in context. The Bill is significant, bringing together as it does for the first time a set of powers currently used by the intelligence agencies and law enforcement. It adds checks and balances regarding authorisation and oversight, and provides a degree of certainty regarding those powers and those checks and balances, which up until now has not been there in that form. It certainly provides greater navigability. Many of the powers are contained in a variety of legislation passed over time, so the point made by the Chairman of the Intelligence and Security Committee on Second Reading of the draft Bill—that it is hard to navigate the legislation that supports the powers—was well made. The Bill provides greater transparency and, I hope, greater clarity.
It is important to understand that privacy is at the very core of the Bill. Clause 1 deals with that core. There have been calls, and we may hear them again during our consideration, for privacy to be defined more explicitly, but my counter view, without wishing to be unnecessarily contentious at this early stage, is that privacy runs through the very fabric of the Bill and that to separate it out—to desiccate it in that way—would weaken the commitment to privacy that is at the heart of the legislation. The protection of private interests and the protection of the public are at the heart of all we seek to do in the Bill. In my view, it is therefore unacceptable to limit the privacy provisions to a single clause.
Perhaps it would be advisable for me to give a little more detail about what the Bill does in respect of privacy. By underpinning the powers and sensitive capabilities available to law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation—for the first time and in groundbreaking terms—they answer the call of those who have argued that both the political masters who drive these things and the judiciary should play a part in reinforcing those safeguards, based very much on the core principle of necessity and proportionality which applies to all such powers.
It is fair to say that in sweeping away some of the cobwebs that surrounded the powers I have described—certainly in the view of some of their critics—the provisions here shed a light on some of the most sensitive powers available to our intelligence and security agencies. It follows absolutely the direction provided by the independent reviewer of terrorism legislation, David Anderson QC, that the capability examined in the Corston review of investigatory powers should be avowed and put on a statutory footing.
It is important that the public and Parliament understand that the powers I describe are there to keep us safe. It is also important that those powers are constrained in the way I have briefly described. The Bill places very strict controls on the use of those powers. They reflect the proposals of the 2015 report by Parliament’s Intelligence and Security Committee on privacy and security. They include limitations around who can use each of the powers; for what purposes and in what circumstances; how information can be obtained under the powers must be protected; when it can be shared and in what circumstances it must be destroyed; and, perhaps most importantly, the penalties—including criminal sanctions—for improper use of the powers.
In addition, the Bill delivers the strongest possible safeguards for the way the powers are authorised. I have spoken about the groundbreaking introduction of the double lock which means that politicians and the judiciary are involved in authorising powers. This maintains democratic accountability and adds a new element of judicial independence. No doubt we will discuss this in subsequent consideration of the Bill. Indeed, I note that amendments have been tabled that will allow us to do just that. However, I remain of the view that it is very important that this House and Ministers play a key part in the business of authorising these powers. The introduction of judges into the process of issuing warrants represents a highly significant change to the way the security and intelligence agencies operate—perhaps one of the most significant changes since they began in the last century. These things are not done lightly and should not be taken for granted. It is a very important change.
I spoke earlier about oversight and the Bill also introduces world-leading new oversight provisions, drawing together some of what is done already but adding visibility and transparency in the way that I mentioned. This is an opportunity for the new Investigatory Powers Commissioner to be an effective advocate for the public. The commissioner will have unfettered access to the work of the security and intelligence agencies and new powers to inform people who have suffered as a result of serious errors. He or she will leave no question in the minds of the public or that of Parliament that these powers are used within both the letter and the spirit of the law.
Returning to my initial point about the clause, let us reflect on what the privacy safeguards amount to. In essence, they reflect the collective consideration of the three independent reviews and three Parliamentary Committees that preceded the Committee’s consideration of the Bill. There have been those who have surprisingly—some might say remarkably or incredibly—argued that the Bill has been rushed in some way. My goodness, I cannot remember a single other piece of legislation in my time in Parliament that has been published in draft preceded by three independent reports; has then been considered by three separate Committees of the House; and published in its full form and debated on Second Reading. The Bill is about to have consideration of the most serious kind—I say that, looking around at the cerebral members of the Committee—and will then, of course, proceed to the other place for similar scrutiny. I hesitate to say that it is unprecedented, but it is quite unusual and reflects the Government’s absolute determination to get this right. I hope that the Committee will move ahead as one in our determination to put both these powers and the safeguards—the checks and balances—in place.
The consideration of the Bill that has already taken place covers the vast proportion of the clauses. No doubt we will refer to some of those reports during the next few days and weeks. I am absolutely sure that all members of the Committee want what I want—for this legislation to be in a form that engenders complete confidence that those whose mission is to keep us safe have what they need to do so, but that the checks on the exercise of their powers are rigorous, robust and transparent. In that spirit, and with that hope about the further consideration, I commend clause 1 to the Committee.
Keir Starmer (Holborn and St Pancras) (Lab)
I, too, welcome you to the Chair, Ms Dorries. It is a pleasure to serve under your chairmanship.
Our starting position is that in the aftermath of attacks such as those we have recently seen in Brussels, which are only the latest in a series of similar attacks, there can be no doubt that the security and intelligence services and law enforcement agencies need all the powers that are necessary and proportionate to deal with serious threats. That is the starting position on the Bill, so far as the Labour party is concerned.
As the Minister has said, it is a good thing that the powers that had previously been exercised by the security and intelligence services are now avowed on the face of the Bill. That is welcome, but those powers also need to be justified, clearly defined and limited, and there must be proper safeguards. The Opposition’s proper role in the process we are about to undertake is to robustly challenge the Bill’s provisions where they do not meet those criteria and to push back and probe. Through that process, we hopefully will improve the final product so that the Bill achieves what it needs to achieve, but goes no further than what is necessary and proportionate.
On justification, as the Minister no doubt knows, the shadow Home Secretary wrote to the Home Secretary on 4 April making a number of points, one of which was the need for a better assessment of the operational case and, in particular, an independent assessment of bulk powers. He said:
“Whilst I accept the broad argument advanced by the authorities that powers to extract information in bulk form may provide the only way of identifying those who pose a risk to the public, the operational case for bulk powers which accompanied the Bill’s publication has significant gaps. This was clear from contributions made at Second Reading from both sides of the House.”
Anyone who reads the operational cases will see that they are slim indeed, and more than half the printed case is introductory matter.
The shadow Home Secretary suggests in the letter that
“the simplest way to proceed would be, firstly, to produce a more detailed operational case and, secondly, to accept the recommendation of the Joint Committee and commission an independent review of all the bulk powers.”
The Labour party suggests that that review should conclude in time to inform Report and Third Reading. Obviously the Minister will probably not want to deal with the matter here and now, but I ask that a reply to the letter be prepared as soon as possible so that we can move forward on that issue.
The letter also deals with concerns about internet connection records, which we will deal with when we come to the appropriate clauses, but it particularly highlights the problems of definition in clause 54 and the question of the threshold for accessing internet connection records along with other comms data.
The letter also talks about the
“definitions of ‘national security’ and ‘economic well-being’”,
which we will probably start to debate today. The letter also raises meaningful judicial authorisation and oversight and the need for an overarching criminal offence of deliberate misuse and for effective protections for sensitive professions. Can a reply to the letter be prepared as soon as possible so that we can move forward, particularly on the operational case? If there is more work to be done, the sooner it starts the better. With luck it can then be finished in time for the next stage, which is Third Reading. Will the Minister ensure that there is a speedy response to that letter?
On the question of privacy provision, I listened carefully to what the Minister said. The recommendation of the Intelligence and Security Committee was that there should be general safeguards on privacy. Clause 1 does not provide that. The Minister says that the safeguards run through the Bill. I will make the cheap point, but I will make it quickly. The only amendment to part 1 in response to the Intelligence and Security Committee was the insertion of the word “privacy” in the title. It used to say “General protections”, and it now says “General privacy protections”. However, clause 1 in itself is clearly not enough. It is true that there are safeguards in the Bill, but there is also considerable inconsistency, and that is where overarching principles would play their part.
I will flag up for the Committee three examples of that inconsistency. It is the sort of inconsistency that an overarching provision would deal with. The first is in the draft code of practice on the interception of communications that is before the Committee, which we will consider further this morning. There is a strong proposition in paragraph 4.7 of the draft code, under the heading:
“Is the investigatory power under consideration appropriate in the specific circumstances?”
It states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”
So there is a clear proposition on necessity; it is not necessary if information can be obtained by other less intrusive means.
Joanna Cherry (Edinburgh South West) (SNP)
I welcome you to the Chair, Ms Dorries and it is a pleasure to serve under your chairwomanship. I would like to make some brief opening remarks on behalf of the Scottish National party in response to the Minister. We acknowledge the attempt to codify and modernise the law, and we think that the attempt is laudable. However, we think that the execution of this attempt is not laudable. We believe that there has been a rush to legislate, and it is not only we who say that. Members will remember that, when evidence was given to the Committee by Jo Cavan, the head of the Interception Commissioner’s Office, she spoke of an aggressive timeline for the Bill. When I asked her to elaborate on that, she said:
“It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 70.]
She agreed with me that the time afforded for scrutiny of the Bill is inadequate, particularly with regards to the international legal implications of aspects of the Bill.
Mr Hayes
I have no wish to delay us unduly or indeed to embarrass the hon. and learned Lady, but I remember the evidence that was given. As she will remember, I challenged the witness on it because, as I said earlier, I cannot recall another piece of legislation that has enjoyed such close scrutiny over such a period of time. Can the hon. and learned Lady think of another such piece of legislation?
Joanna Cherry
I do not recall legislation of such detail and such constitutional significance. I have only been in this House for nine months, but I have followed the operation of this House closely since I was a teenager. This is a massive Bill, and it is its constitutional significance that matters. I chaired an event last night at which the chair of the Bar Council of England and Wales spoke. She raised her concerns about the rush to legislate because of the constitutional significance of the legislation and its implications for the rule of law. The Minister does not embarrass me at all. I wholeheartedly stand by what I say. It is a widely held view, across parties and across society, that there is not sufficient time for the scrutiny of this legislation.
Joanna Cherry
I will make some progress, if I may. I would like to echo the comments of the hon. and learned Member for Holborn and St Pancras about the proper role of the Opposition, which I spoke about on Second Reading. As he said, it is the proper role of the Opposition to robustly challenge the legislation, to push back on it and to probe, hopefully with a view to improving it. That is why my party did not vote the legislation down on Second Reading. We are honestly engaged here in a process of improvement, but if the Government are not prepared to listen to us then we may well vote against the legislation at a later stage.
I echo what the hon. and learned Gentleman said about the failure to amend the draft Bill to deal with the ISC concerns regarding the lack of overarching principles on privacy. I also strongly echo what he said about a request for the Minister to clarify how the Committee is to approach the codes of practice which, as the hon. and learned Gentleman said, this Committee does not have the power to amend, and which contain some enormously important detail. Jo Cavan, the head of the Interception Commissioner’s Office, also drew attention to that in her evidence.
On Second Reading on the Floor of the House, I promised to table radical amendments. The SNP has tabled radical amendments to the part of the Bill we will look at today. We want to ensure that surveillance is targeted, that it is based on reasonable suspicion, and that it is permitted only after a warrant has been issued by a judge rather than by a politician. We want to expand the category of information which will be accessible only by warrant, and to ensure that warrants may not be provided without proper justification. We also want to remove the widely drafted provisions of the Bill that would allow modification of warrants and urgent warrants without any judicial oversight. Those provisions, if they remain in the Bill, will drive a coach and horses through the so-called double-lock protection in the legislation.
We have also laid amendments to ensure a proper and consistent approach to the safeguards afforded to members of the public who correspond with lawyers, parliamentarians and journalists. We want to put a public interest defence into the offence of disclosure of the existence of a warrant. Those are the sort of radical, principled amendments that we believe are required to render parts 1 and 2 of the Bill compliant with international human rights law, bring the Bill into line with practice in other western democracies and meet the concerns of the UN special rapporteur on the right to privacy. We recognise that the security services and the police require adequate powers to fight terrorism and serious crime, but the powers must be shown to be necessary, proportionate and in accordance with law. If the House is not about the rule of law, it is about nothing.
Simon Hoare
I am very grateful to the hon. Lady for giving way. I do not agree with her and her party that the Bill is the constitutional earthquake they represent it to be. However, she has just referenced a point that would mean constitutional upheaval, if I heard her correctly—namely, to remove any political input, and therefore democratic accountability, to this House and to elected Members, and to bypass it all to unelected, unaccountable judges, though I mean that in no pejorative sense. To effectively create massive cleavage between democratic accountability and the day-to-day action allowing those things to go ahead would be a constitutional upheaval. Have the hon. and learned Lady and her party colleagues considered that viewpoint in that context?
Joanna Cherry
We have considered it in detail and I will be addressing it later in my submissions to the Committee. The hon. Gentleman and I will have to differ in our view on this. I do not consider that there is anything constitutionally unusual in judges being solely responsible for the issue of warrants. That happens in a lot of other western democracies—it is called the separation of powers. The idea that Ministers are democratically accountable to this House for the issuance of warrants on the grounds of national security is nonsense. I will explain later why I consider that to be so.
I was trying to stress that the SNP position is that we recognise the necessity of having adequate powers. I hope to be writing the security policy for an independent Scotland before I am an old lady and I would want to have a responsible, modern security policy that dovetails with that of England and other countries in these islands, but I want to model it on what other western democracies are doing, rather than going as far as this Bill, which, without proper justification, goes beyond what other western democracies do. The SNP intends to table amendments to deal with what I called on Second Reading the fantastically intrusive provisions of this Bill regarding internet connection records and bulk powers. We also want to look at ensuring a proper oversight commission, but that is for a later date. I look forward to addressing amendments on parts 1 and 2 of the Bill.
Mr Hayes
The shadow Minister raised a number of issues, some of which related to the letter he mentioned—I have a copy—which the shadow Home Secretary sent to the Home Secretary. This consideration is an answer to the letter; I might even go so far as to say that I am the personification of the answer to the letter. None the less, it is important that a reply is drawn up, not least because that reply will be useful to the Opposition in helping to frame their further ideas. For that reason, I will ensure that a reply to the letter is sent in good time, so that all members of the Committee, mindful of that response to the original letter, can form their consideration accordingly..
Keir Starmer
I accept that we will deal with most of the points in the letter when we get to specific clauses—that is an appropriate way forward. The issue of most concern in the letter, which I ask the Minister to consider, is that of the independent assessment of bulk powers. The Committee will not be looking at the operational case in the way that is called for in the letter. It is simply a timing issue: if there is to be any movement here, it needs to be quick. A speedy response would be welcome.
Mr Hayes
Let me deal with that specific point. It is true that there will always be a debate about what is on the face of Bills and what is in supporting documentation. The hon. and learned Gentleman mentioned the codes of practice. I emphasise these are draft codes of practice and, of course, it is important that the consideration by the Committee informs how their final version will be framed. The reason we published them was partly so that we could have a better debate here and learn from it in drawing up the final codes of practice.
The hon. and learned Gentleman will know very well that there is a perennial argument about how much is placed on the face of the Bills because of the problem that creates in terms of rigidity, particularly in highly dynamic circumstances, such as those we face in relation to some of these matters. However, I accept that from a legal perspective what is on the face of the Bill adds additional weight to the protections that the hon. and learned Gentleman seeks. I understand that argument and have no doubt it will permeate much of what we consider. I re-emphasise that the codes of practice are themselves not set in stone and will undoubtedly metamorphose as a result of our considerations.
The hon. and learned Gentleman raised a second point in respect of bulk powers and particularly the operational case that needs to be made for such powers. This is a highly sensitive issue. All Governments of all political persuasions have recognised that, because we are dealing with some matters that cannot be debated publicly. That applies to the operational case that the Security Services might need to make when requesting powers to intercept communications, for example, but it could be the case with a number of other powers.
Furthermore, I accept that there are particular sensitivities in respect of bulk powers. The hon. and learned Gentleman and the Committee have been briefed by the intelligence and security services as part of our considerations. He will know that GCHQ use bulk powers very extensively in a number of highly sensitive operations, and there is a limit to how much of that can be placed on the face of the Bill or even made available more widely.
The hon. and learned Gentleman will also know that the Intelligence and Security Committee has privileged access to more information than the House as a whole. It exists, in part, for that purpose. It provides a means by which the Government can be held to account by a Committee made up of members of all political parties in this House. The case that the shadow Home Secretary makes on the definition of the operational case for exercise of these powers is something that we will consider. However, I emphasise that we are treading on quite sensitive ground here and there may be a limit to how far the Home Secretary or I can go. I am sure the hon. and learned Gentleman will want to acknowledge that.
Keir Starmer
I am grateful that the Minister will give further consideration to the matter. The reason it is of great concern is because, first, we are being asked to approve new powers in the Bill. I accept that some of the powers are obviously avowal of existing powers, but there are new powers and internet connection records is one. Of the avowal powers, this is the first time that Parliament has had the chance to debate them, so they are new to Parliament in that sense.
I take the point that members of the Committee have been briefed and some of us have experience of the operation of some of these powers, but therein lies part of the problem. I think there is a democratic deficit if we proceed only on the basis that a select number of people can know the detail, but the public cannot. Of course there are sensitivities. I do not think anyone is suggesting that a full operational case without any modifications, redactions and so on, could be published. I ask for consideration of something more than what we have that allows for independent assessment, which does not necessarily need to take place in the public domain, but can be viewed through the eyes of the informed member of the public who wants to be assured about the necessity of the powers without having to listen to politicians or others saying, “We’ve been briefed; trust us”, because in this day and age that approach is no longer acceptable. I hope the Minister and others will try to see this through the eyes of the informed and concerned member of the public who wants to be assured about what the Bill is actually bringing forth for the security and intelligence services and law enforcement.
Mr Hayes
I do not want to get into a great debate about this now because we are at the beginning of the Bill and this will come up again during further consideration. I acknowledge that the hon. and learned Gentleman has recognised there is a sensitivity about how much can be put in the Bill and how much can be debated in a public forum. He is right that we tread a tightrope between making sure that we have public confidence that the system is fit for purpose, but also proportionate, and on the other hand not tying the hands of those wishing to keep us safe. That is the tightrope that every Government of all persuasions has had to walk.
Whether the hon. and learned Gentleman is right about a changing public mood is more debatable. Most surveys of the public mood suggest a very high level of confidence in our intelligence and security services and the powers that they exercise, so I am not sure there is a great public clamour for them not to be able to do some of the things they have to do. Contextually, given the threat we now face, I suspect most of the public would say they need absolutely all the powers necessary to face down that threat, so I am not absolutely sure that we do not occasionally see these things through the prism of a chattering class view of what the public should think, rather than what the public actually think. I am committed to the idea of politicians continuing to be involved in these things, because we have a regular and direct link to the British public and are in a pretty good position to gauge what their attitudes to such matters might be. So the issues are sensitive, but I appreciate the spirit and tone of the hon. and learned Gentleman and I am determined that we get this right in a way that we can both be comfortable with in the end.
The hon. and learned Gentleman asked how we might subsequently deal with issues around authorisation. We will have a chance to debate that at greater length as we go through the Bill, so it would be inappropriate to do so now. That point was made by the hon. and learned Member for Edinburgh South West. I think we are going to disagree about quite a lot of these matters, not because I do not want to move ahead in the spirit of generosity and unanimity where we can possibly do so, but I think that my position is more like that of the former Home Secretaries who gave evidence to the Committee, Lord Reid and Charles Clarke, who were very clear that the involvement of Ministers in authorising powers is an important way in which the public can be represented in these areas. Ministers bring a particular insight to such work. I was unsurprised by their consideration, but pleased that they were able to reinforce the view that I know is held by almost everyone who has been involved in the warranting process in modern times.
We heard from the former Secretary of State for Northern Ireland, my right hon. Friend the Member for North Shropshire (Mr Paterson), in similar vein. Indeed, he was doubtful about giving judges any role in the process at all, and many others take that view. The Government, however—always anxious to achieve balance and compromise—developed the double-lock, which the hon. and learned Gentleman mentioned. It retains the involvement of Ministers, as Lord Reid and others argued we should, but introduces judicial involvement and, one might argue, adds a greater degree of empiricism to the process, as David Anderson recommended in his report.
Joanna Cherry
The Minister will recall that, under questioning by the hon. and learned Member for Holborn and St Pancras, Lord Judge, in his evidence to this Committee, expressed concern about the phrase “judicial review”. He said that it
“is a very easy phrase to use. It sounds convincing, but it means different things to different people…Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial…commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 69, Q220.]
What are the Government going to do to take on board what that distinguished judge had to say about this matter?
Mr Hayes
Yes, but Lord Judge also went on to say in the same evidence session that what really matters is what Parliament actually wants. He wanted to be clear about what Parliament wants and to respond accordingly. I heard what Lord Judge said, but I also heard what Lord Reid and Charles Clarke said. Frankly, I see no evidence that the warranting process is not considered carefully by Ministers, that they do not take that work incredibly seriously, that they do not seek all the information they need to exercise reasonable judgment and that they do not apply the tests of necessity and proportionality diligently. Neither this Committee nor the Joint Committee heard evidence to suggest that there is anything faulty in that system.
I am a conservative, so I would be expected to say that if something works there is no good reason for changing it, but because I want to be moderate and reasonable—notwithstanding my conservatism—we introduced the double-lock. My goodness, we have already gone a very long way down the road.
Keir Starmer
We are going to get to this issue in due course. I will not take long, but it is important that I set it up, because the more thinking that can be done now, the more quickly we can deal with it when it comes up. There are two different issues. Lord Reid talked about whether the judiciary should be involved at all. Lord Judge asked, assuming that they are involved, about the test that they are to apply. He was concerned about judicial review because, as everybody knows, there are different forms of judicial review. Sometimes it involves close scrutiny, where the judges virtually make the decision themselves. In other circumstances, there is much more deference. He was concerned that, within that range, it is not clear what the judges are being asked to do.
There were a number of references in the questioning and on Second Reading to the necessity and proportionality tests. Of course, that is what the Secretary of State considers, but the judges’ function is different. On the face of the statute, their function is to review. The question is, what does that mean? We tabled amendments to that end. It is important that we do not confuse this matter. Lord Judge identified something very important, and when someone as distinguished as him says that what is on the face of the Bill is not clear enough, we have all got to go away and have a good, hard look at what the words are.
Mr Hayes
The hon. and learned Gentleman is right that we should not debate things that are going to be debated later—Ms Dorries, you will draw me to order if I do so anyway. The important issues around judicial review principles will be debated when we come to a subsequent amendment. My hon. and learned Friend the Solicitor General will deal with those matters. Lord Judge drew attention to the basis on which the double-lock will operate. The hon. and learned Gentleman is right about that. My point in response to the hon. and learned Lady’s argument was about whether politicians should be involved in the process at all. I do not mean to be unkind to the hon. and learned Gentleman, and I certainly do not want to start off in anything other than a convivial spirit. However, given that the shadow Home Secretary’s letter talks about an equal lock, given that he has argued for the simultaneous presentation of the material to both parties and given the great debate about the same information being available to the judicial commissioner and the Home Secretary, I was slightly surprised to find that amendments had been tabled that would take the Home Secretary out of the process altogether.
The Chair
With this it will be convenient to discuss new clause 3—Tort or delict of unlawful interception—
“Any interception of a communication which is carried out without lawful authority at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable by the sender or recipient, or intended recipient, of the communication if it is either—
(a) an interception of that communication in the course of its transmission by means of that private system; or
(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.”
This new clause creates a civil wrong of unlawful interception.
Joanna Cherry
I will deal with new clause 3 in fairly short compass. The amendment was suggested to me by the Scottish division of Pen International, which is a world association of writers. It would introduce a tort, or a delict as we call it in Scotland, for unlawful interception. Such a tort or delict exists already as a result of section 1(3) of the Regulation of Investigatory Powers Act 2000, and I am not entirely sure why it has not been replicated in the Bill. I would be interested to hear from the Solicitor General or the Minister for Security why the Government did not include the measure in the Bill, and whether they will give it serious consideration. It would give a meaningful avenue of recourse and act as a motivation to intelligence agencies, police forces and the Government to ensure that all interception is lawfully authorised, on pain of an action for damages if it is not properly authorised. It is really a very simple new clause modelled on section 1(3) of RIPA. I am interested to hear what the Government have to say about this suggestion.
The Solicitor General (Robert Buckland)
It is a pleasure to take this first opportunity to say that I am looking forward to serving under your chairmanship, Ms Dorries, and indeed to serving with all colleagues on the Committee.
I am grateful to the hon. and learned Lady for making her observations in a succinct and clear way. I am able to answer her directly about the approach that we are taking. One of the aims of the Bill is to streamline provisions to make them as clear and easy to understand as possible. She is quite right in saying that RIPA had within it this provision—a tort or a delict, as it is called north of the border, that would allow an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and to intercept communication on that system.
The Government have fielded a number of inquiries about the non-inclusion of the RIPA provision in the Bill. The circumstances in which it applies are extremely limited, and as far as we are aware it has never been relied on in the 15 years of RIPA’s operation. The provision applies only in limited circumstances because it applies to interception on a private telecommunications system, such as a company’s internal email or telephone system. Where the person with the right to control the use or operation of the system is a public authority, there are of course rights of redress under the Human Rights Act 1998, such as article 8 rights.
The Bill is intended to make the protections enjoyed by the public much clearer and we feel that introducing that course of action or replicating it would not add to that essential clarity, but I have listened carefully to the hon. and learned Lady and we are happy to look again at the issue in the light of her concerns. On that basis, I invite her not to press her new clause and I hope we can return to the matter on Report.
Joanna Cherry
I am grateful to the Solicitor General for his constructive approach. I am happy not to press the new clause at this stage on the basis that the Government will look at it. I am happy to receive any suggestions about the drafting, which is mine. I had some discussions about the terms of the drafting with Michael Clancy of the Law Society of Scotland and James Wolffe, the dean of the Faculty of Advocates, but any infelicities are my fault alone. I would be happy to discuss the drafting with the Government.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Definition of “interception” etc.
Question proposed, That the clause stand part of the Bill.
Keir Starmer
There are no amendments tabled to the clause, which we support, but I say for the record and for clarification that what is welcome in clause 3 is the spelling out in legislation of the extent of an interception—an issue that has bedevilled some recent criminal cases. Importantly, as the explanatory notes make clear, it is now provided in clear terms that voicemails remaining on a system, emails and text messages read but not deleted and draft messages stored on a system will count within the phrase “in the course of transmission” and will therefore be covered by the offence. We welcome that. I wanted to emphasise that point and put it on the record, because a lot of time and effort was spent when that phrase was not so clearly defined.
The Solicitor General
I am extremely grateful to the hon. and learned Gentleman. He is right: we have moved a long way from phone tapping, which he, I and many others understood to be clear interception whereas, for example, the recording and monitoring of communications at either end of the process was not interception. As he rightly says, the internet and email have caught up with us, so as part of the Government’s thrust to have greater clarity and simplicity, this essential definition is a welcome part of the statutory framework that now exists.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clauses 4 and 5 ordered to stand part of the Bill.
Clause 6
Monetary penalties for certain unlawful interceptions
Question proposed, That the clause stand part of the Bill.
Keir Starmer
Again no amendments are tabled to the clause, but there are some questions that arise from it. The explanatory notes say, and it is clear in the Bill, that the clause creates a power for the Investigatory Powers Commissioner to impose fines where an interception has been carried out, but there was no intention. It relates to action that might otherwise be an offence, but the intention element is not made out. Against that background, I have some questions for the Solicitor General.
If the power applies where an interception is carried out but there was no intention to do so, it is hardly likely to have a deterrent effect because the person did not intend to do it in the first place, so what is the rationale and purpose of this provision? It is clear in schedule 1, which is related to clause 6, that the commissioner has very wide discretion in relation to the operation of the powers under the clause including, in paragraph 13, powers to require information from individuals
“for the purpose of deciding whether to serve”
an enforcement notice. Thus we have a provision that is premised on a non-intentional interception that then triggers quite extensive powers to require information with penalties for failure to provide that information. Schedule 1 states that guidance will be published on how the powers are to be exercised, but what is the real rationale and purpose? Why are the powers as extensive as they are and will the Minister commit to the guidance envisaged under schedule 1 being made public?
In clause 6(3)(c) there is reference to a consideration by the Commissioner that
“the person was not…making an attempt to act in accordance with an interception warrant”,
which suggests that that is outside the scheme of the provision. We have also noted that the provision relates only to a public telecommunications system. It is in many ways supplementary or complementary and we are not questioning it in that sense, but there is a number of unanswered questions. If we are to scrutinise and probe, it would be helpful to have those answered now if possible, and if it is not answered in writing.
The Solicitor General
I am grateful to the hon. and learned Gentleman for his questions. I assure him that there is a very good rationale for the inclusion of these powers. They are a replication of powers that were added to RIPA in 2011. Monetary penalty notices followed a letter of formal notice that was issued by the European Commission setting out its view that the UK had not properly transposed article 5(1) of the e-privacy directive and articles of the data protection directive. In particular, the Commission identified:
“By limiting the offence in Section 1(1) RIPA to intentional interception, the UK had failed to create a sanction for all unlawful interception as required by Article 5(1) of the E-Privacy Directive and Article 24 of the Data Protection Directive.”
The Government rightly conceded the defective transposition that had been identified and therefore the monetary penalty notice regime was established to introduce sanctions for the unintentional and unlawful interception in order to remedy the deficiency.
The hon. and learned Gentleman is quite right that it is a step down from a criminal offence, where intention has to be informed, but as my right hon. Friend the Minister for Security said when opening the debate, underpinning all of this is the importance of privacy, and the right to privacy is demonstrated in practical form by the inclusion of clause 6 and schedule 1. It is important so that we cover all aspects of intrusion because, as the hon. and learned Gentleman will know, privacy is not just about confidentiality. That is often misunderstood, particularly in the light of recent debates about injunctions. It is about intrusion into the lives of individuals, and that intrusion by the authorities in particular should be marked in some way by the imposition of some alternative sanction if it cannot be criminal sanctions. Therefore, there is a very sound rationale for the inclusion of these powers and replicating them from RIPA, and therefore I commend the clause to the Committee.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 7
Restriction on requesting interception by overseas authorities
Keir Starmer
I have a probing question. It is right to include a provision that makes it clear that the UK authorities cannot evade the protections and safeguards in the Bill by requesting that a foreign authority carry out on their behalf the interception of materials relating to a person in the UK. That is right in principle and we support that. It may be my limitation in going through the provisions in recent weeks, but I am not sure whether there is a sanction for failure to adhere to the clause’s provisions. In other words, it is good that it is there, but I am not sure whether anything formal will happen if it is not followed. Will the Minister answer that now or at least give some consideration to that?
The clause is important and right in principle, but I cannot find a sanction for failing to comply with it and there probably ought to be one. If it is somewhere else in the Bill, I will defer to those who know it better than I do.
Mr Hayes
I am happy to say on behalf of my hon. and learned Friend the Solicitor General that we will give consideration to that.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Restriction on requesting assistance under mutual assistance agreements etc.
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I rise to make essentially the same point as I made on the previous clause, albeit more briefly. This is a good and right in principle clause to ensure that there are restrictions on requesting assistance under mutual assistance agreements, but again the sanction for breach is not entirely clear. That may be something that, under the umbrella that the Minister for Security just indicated, could be taken away to see what the enforcement regime is for these important safeguarding provisions.
The Solicitor General
The hon. and learned Gentleman will know that this mutual legal assistance regime definitely benefits from statutory underpinning. It has become increasingly important. Sadly we have all learnt that relying just on good will or informal arrangements is no longer sufficient, which is why the international work that I know hon. Members are aware of, particularly negotiations with the United States, are so important in speeding up the process and making it ever more efficient, particularly in the light of all the political controversies we have been dealing with in recent days. I undertake to deal with the question that he raises, which I think we can deal with in an umbrella form as he suggests.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Offence of unlawfully obtaining communications data
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 4—Tort or delict of unlawfully obtaining communications data—
“The collection of communications data from a telecommunications operator, telecommunications service, telecommunications system or postal operator without lawful authority shall be actionable as a civil wrong by any person who has suffered loss or damage by the collection of the data.”
This new clause creates a civil wrong of unlawful obtaining of communications data.
Joanna Cherry
The new clause very much relates to what I said earlier about new clause 3. The intention is to create a civil wrong of unlawfully obtaining communications data as opposed to unlawful interception. Again, the drafting is mine and it could do with some serious tightening up, but my intention is to establish the Government’s attitude to the new clause. I hope that the Solicitor General will indicate that.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she spoke to her new clause. I see that it very much follows new clause 3. Our argument with regard to new clause 4 is slightly different because it has a wider ambit than private telecommunication.
We submit that this tort or delict would not be practicable. Communications data are different from the content of communication. For example, one would acquire communications data even by looking at an envelope or searching for a wi-fi hotspot when turning on a particular wi-fi device at home. It would not be appropriate to make ordinary people liable for such activity. With respect to the hon. and learned Lady, its ambit is too wide. That said, it is only right that those holding office within a public authority are held to account for any abuses of power. That is why clause 9 makes it an offence for a person in a public authority to obtain communications data knowingly or recklessly without lawful authority. I place heavy emphasis on the Government’s approach to limiting and checking the abuse of power by the authorities.
On the new clause, the interception tool was always intended to address the narrow area that was not covered by the interception offence in RIPA, which is replicated in the Bill. As noted, the communications data offence is intentionally narrower. It would therefore be equally inappropriate to introduce a tort or delict in relation to the obtaining of communications generally or in the areas not covered by the new offence. Under the provisions of the Data Protection Act 1998, communications data often constitute personal data. That act already provides for compensation for damage or distress resulting from non-compliance with the data protection principles and for enforcement in respect of failing to comply with the provisions of the act.
Lucy Frazer (South East Cambridgeshire) (Con)
Does my hon. and learned Friend think that the offence of misfeasance in public office would also add a civil remedy for any wrongdoing?
Robert Buckland
I am extremely grateful to my hon. and learned Friend. She is quite right. In fact, not only is there the offence of misconduct in public office, as it is now constituted, having been reformed from the old offence of misfeasance, but we have provisions in the Wireless Telegraphy Act 2006, the Computer Misuse Act 1990 and, as I have already mentioned, the Data Protection Act 1998. I therefore consider that the new offence we are introducing in clause 9, combined with relevant offences in other legislation, in particular the provision in section 13 of the Data Protection Act 1998, provides appropriate safeguards. On that basis, I respectfully invite the hon. and learned Lady to withdraw the amendment.
Christian Matheson (City of Chester) (Lab)
It is, as always, a pleasure to see you in the Chair, Ms Dorries. The Solicitor General has given examples of wide-ranging powers that are available to protect the public. I was grateful to listen to his contribution. However, during Second Reading I queried the Home Secretary’s position on the new offences that are being created. Many of the offences the Bill refers to, particularly in clause 9, relate to the regulation of investigatory powers. My concern is that later the Bill requires internet service providers, for example, to amass a large amount of personal data, and there is a danger that those data may be stolen rather than intercepted. I gave the example of a newspaper perhaps finding a low-grade technical operator in a telecommunications company, passing a brown envelope to them and stealing a celebrity’s internet connection records. I am concerned that the offence in clause 9 of unlawfully obtaining communications data does not go far enough.
I bear in mind the Solicitor General’s comments on other protections that are available, but would he or the Government consider an offence of not just obtaining but being in possession of unlawfully obtained communications data, which would strengthen the protections given to members of the public? We all know that the kind of scenario that I am expressing concern about has not been unknown in the last few years, as various court cases have demonstrated—though I should not discuss their details. Is the Minister satisfied that the protections he has outlined and those raised by the hon. Member for South East Cambridgeshire are sufficient, or should we take this clause a bit further, to give the public broader and wider protection of their privacy and the security of their internet and telecommunications transmissions?
Keir Starmer
It is a pleasure to follow my hon. Friend because I want to develop the point. This is a welcome clause, it is right that it is here, and we support it. However, we question whether it goes far enough. It only covers obtaining communications data. We think that serious consideration should be given to an overarching offence of misuse of the powers in the Bill. At the moment, there are specific provisions in relation to intercept which are replicated frim RIPA and we now have this welcome provision, but there is no overarching offence of misuse of the powers in the Bill.
It is all very well to say that there is the tort of misfeasance in public office. That is not the equivalent of a criminal offence. It has all sorts of tricky complications when one tries to apply it in practice. It is fair to say that there are other bits of legislation that might be made to fit in a given case, but it would be preferable and in the spirit of David Anderson’s approach for a comprehensive piece of legislation for an overarching criminal offence to be drafted, either out of clause 9 or in some other way, relating to misuse of powers in the Bill. It has been a source of considerable concern in the past and I ask the Government to think about a wider offence that would cover all the powers, because comms data are only one small subset of the issues and material information we are concerned with.
I have two short supplementary points. In subsection (3) there is a reasonable belief defence. It would be helpful if the Minister said a bit more about that. May I also foreshadow the inconsistency that we will need to pick up as we go along in the way reasonable excuse and reasonable belief are dealt with in the Bill? It is set out in subsection (3), but there is an inconsistency in other provisions that I will point to when we get there.
My other point is to ask the Minister to consider whether obtaining communications data unlawfully is a sufficient definition to make the offence workable in practice. I put my questions in the spirit of supporting the clause, but I also invite Ministers to go further and consider drafting a clause that covers the misuse of powers in the Bill, rather than simply saying that if we fish about in other bits of legislation or common law we might find something that fits on a good day. In my experience, that is not a particularly helpful way of proceeding.
The Solicitor General
Thank you, Ms Dorries, for allowing me to reply to a stand part debate on clause 9. I think we have elided the this and the previous clause, but I crave your indulgence to deal with everything in a global way. May I deal properly with clause 9 and set out the Government’s thinking on this?
The measure is all about making sure once again that those who hold office within a public authority are properly held to account for any abuses of power. The clause will make it an offence knowingly or recklessly to obtain communications data from a communications service provider without lawful authority. Somebody found guilty of that offence might receive a custodial sentence or a fine. The maximum punishment will vary according to whether the offence was committed in England and Wales, or in the jurisdiction of Scotland or Northern Ireland.
The hon. and learned Gentleman is right to point out the reasonable belief defence. The offence will not have been committed if it can be demonstrated that a person holding office acted in the reasonable belief that they had lawful authority to obtain the data. Where a communications service provider willingly consents to the disclosure of the data, including by making it publicly or commercially available, that would constitute a lawful authority.
The question about reasonable belief is about making sure that genuine error is not penalised, because there will be occasions when genuine errors are made. In the absence of such a defence, public authorities could be deterred by notifying genuine errors to the IPC. It is important that the Investigatory Powers Commission is an effective body monitoring failure and lack of best practice, and preventing future errors.
I think the hon. and learned Gentleman will agree that we both have fairly considerable criminal litigation experience. In this area, I think a regulatory approach will be just as effective, and in some ways more effective, than a criminal sanction. I am grateful to the hon. Member for City of Chester for reiterating the remarks that I remember him making on Second Reading, when he made some powerful points, but I caution that we are in danger of creating an entirely new criminal framework, catching people further down the line, which ultimately will only lead to more confusion and, I worry, the replication of existing offences.
An unauthorised disclosure by someone in a communications service provider would be covered by the Data Protection Act 1998, because those providers have duties and obligations under that Act just like any other holder of data. I hear what the hon. and learned Gentleman says, and I will consider the matter, but my initial reaction to his question and that of the hon. Member for City of Chester is that the Data Protection Act covers such a disclosure.
Victoria Atkins (Louth and Horncastle) (Con)
I have heard Opposition Members’ arguments. Some thought has been given to this point and clause 49 puts a duty not only on people who work in public services but on postal operators, telecommunications operators and any person employed therein to not make unauthorised disclosures in relation to intercept warrants. That might help.
The Solicitor General
I am grateful to my hon. Friend, who served with distinction on the Joint Committee. That provision relates to creating a statutory duty, which, with respect to her, is slightly different from some of the arguments we are having about criminal sanctions. However, it is important to pray that in aid, bearing in mind the mixed approach we need to take in order to hold public office holders and public authorities to account when dealing with this sensitive area.
The Bill provides a great opportunity for us to put into statute a new offence, which will, together with the other agencies, provide a robust regime that will add to the checks and balances needed in this area in order to ensure that our rights to privacy are maintained wherever possible, consistent with the Government’s duty towards the protection of our national security and the detection and prevention of crime.
Christian Matheson
I am grateful to the Solicitor General for that clarification. My concern about his reliance on, for example, the Data Protection Act is what happens in the scenario I described, which I do not believe is so unbelievable, bearing in mind the experiences that hon. Members of this House have had in the past few years with the theft of their information. One problem that his solution presents is that if, for example, my personal data were stolen and published, the only recourse I would have is to the telecommunications provider, which is in a sense a victim itself. The real villains and culprits—the people who stole the information and published it—would not be covered by the Data Protection Act, which is why I seek consideration of extending the clause or guidance from the Solicitor General.
The Solicitor General
I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Joanna Cherry
On a point of order, Ms Dorries, may I seek clarification on my position on new clause 4, which the Minister invited me to withdraw? I am minded to do so, having regard to what the Solicitor General said about the Data Protection Act and what the hon. and learned Member for South East Cambridgeshire said about misfeasance in public office, but as a novice in these Committees I seek some guidance. If I press the new clause to a vote now and it is voted down, does that prevent me bringing it back to the Floor of the House?
The Chair
As I made clear at the beginning of our sitting, you could move the motion at the end of consideration, but that does not prevent you from bringing the new clause back on Report. This point in the proceedings is not the time for it.
Joanna Cherry
I realise that, but my point is about the conflicting information on the issue. If an amendment is pressed to a vote and voted down in Committee, some people tell me that it cannot then be brought before the House at a later stage; others tell me that that is not the case. I am anxious to have the Chair’s clarification.
The Chair
It is not normal, but it does sometimes happen; it is at the Speaker’s discretion. If voted down, you would have to retable the amendment and it would be up to the Speaker, who would know that it had been heard in Committee and voted down.
Joanna Cherry
I am grateful. So if I withdraw the new clause now, I cannot be prevented from bringing it back later—I will withdraw it in Committee.
Clause 10 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 11
Mandatory use of equipment interference warrants
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I will be very quick. The clause is welcome and we support it, but again my concern is that there is no enforcement mechanism or sanction. Will the Minister take it under the umbrella of these clauses that are intended to ensure good governance, effectiveness and that the proper routes are used, and look in an overarching way at what their sanction might be? I am asking a similar question to one I made before: what is the sanction if what should happen does not happen?
The Solicitor General
Yes, of course, we will do as the hon. and learned Gentleman asks. I welcome his endorsement of the importance of the clause, bearing in mind what it sets out and the clarity we are achieving through its introduction.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Restriction on use of section 93 of the Police Act 1997
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I make the same point again: the clause is a good provision but appears to lack any enforcement mechanism or sanction, so if it could go into the basket of clauses that are being looked at in relation to sanction, I will be grateful.
The Solicitor General
The clause confirms that section 93 of the Police Act 1997 may not be used to authorise conduct where the purpose of the proposed interference is to obtain communications, private information or equipment data and the applicant believes the conduct would otherwise constitute an offence under the Computer Misuse Act 1990, and the conduct can be authorised under an equipment interference warrant issued under part 5 of the Bill. So it does not prevent equipment interference being authorised under the Police Act where the purpose of the interference is not to obtain communications and other data—for example, interference might be authorised under the Act if the purpose is to disable a device, rather than to acquire information from it.
That reflects the focus of this Bill. We are trying to bring together existing powers available to obtain communications and communications data. I emphasise that the measure does not prevent law enforcement agencies from using other legislation to authorise interference with equipment that might otherwise constitute an offence under the Computer Misuse Act. For example, law enforcement agencies will continue to exercise powers under the Police and Criminal Evidence Act 1984 to examine equipment that they possess as evidence. The result of this clause is that all relevant activity conducted by law enforcement agencies will need to be authorised by a warrant issued under part 5 of the Bill.
Keir Starmer
Based on what the Minister has just said, it may be that it is anticipated that any attempt to use other legislation in breach of this provision would automatically be refused. That is the bit where there might need to be some clarity, because in effect it will not be an application under this legislation; it would be an application under different provisions, so does this operate as a direction to any decision maker that that is an unlawful use of another statute? That is not entirely clear. I think that that is what is intended. If it is, that is a good thing, but I am not entirely sure that a decision maker would say, “I am prohibited by law from exercising powers available to me under other legislation.” I leave that with the Minister because it may be something that can be improved by further drafting.
The Solicitor General
I thank the hon. and learned Gentleman for that intervention. While I will answer the specific question, I think it is important that I set out the fact that this provision is not the only means. What we are dealing with here is part 5 and the double lock and the enhanced safeguards. If any agency or authority fails to use new part 5 or PACE, for example, in other circumstances, they will be committing an offence under the Computer Misuse Act. Public authorities are no different from any other individual or body: if they are not complying with the existing legal framework by this or other means, they fall foul of the law themselves. I will endeavour to answer the other points raised about sanction but I urge the Committee to agree that the clause stand part of the Bill.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
Warrants that may be issued under this Chapter
Keir Starmer
I beg to move amendment 57, in clause 13, page 10, line 16, after “content”, insert “or secondary data”
This amendment, and others to Clause 13, seek to expand the requirement of targeted examination warrants to cover the examination of all information or material obtained through bulk interception warrant, or bulk equipment interference warrant, irrespective of whether the information is referable to an individual in the British Islands. They would also expand the requirement of targeted examination warrants to cover the examination of “secondary data” obtained through bulk interception warrants and “equipment data” and “information” obtained through bulk equipment interference warrants.
The Chair
With this it will be convenient to discuss the following:
Amendment 58, in clause 13, page 10, line 17, leave out from “examination” to end of line 18
Amendment 59, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert
“of material referable to an individual known to be in the British Islands at that time, or British citizen outside the British Islands at that time.”
Amendment 60, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert
“of material referable to an individual known to be in the British Islands at that time, or British, Canadian, American, New Zealand or Australian citizen outside the British Islands at that time.”
Amendment 83, in clause 13, page 10, line 22, after “6”, insert—
“In this Part “secondary data” means—
(a) in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);
(b) in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).”
Keir Starmer
I rise to speak to amendments 57, 59 and 60. Amendment 57 deals with secondary data; amendments 59 and 60 deal with place and whether someone is in the British Isles. I apologise, Ms Dorries: the provision and the amendment are complicated. With your permission I will take some time to set the context so that the amendment can be understood.
Clause 13 deals with warrants. Subsection (1) deals with targeted interception warrants, targeted examination warrants and mutual assistance warrants. Subsection (2) states:
“A targeted interception warrant is a warrant which authorises or requires the person to whom it is addressed to secure, by any conduct described in the warrant, any one or more of the following”,
and paragraph (a) deals with the interception of communications. That is content; paragraph (b) deals with secondary data from the communication; and paragraph (c) deals with disclosure. For targeted warrants under clause 13 there are specific provisions in relation to the content, secondary data and disclosure.
Secondary data for these purposes is further defined in clause 14, subsection (5) of which states:
“The data falling within this subsection is systems data which is comprised in, included as part of, attached to or logically associated with the communication”,
so it has an integral link to the communication and thus to the content.
The Chair
Order. Mr Starmer, if you could keep your comments to clause 13 with just passing reference to clause 14 and further clauses, that would be great.
Keir Starmer
I will, but on this particular occasion, I really think it is almost impossible to understand clause 13(3) without going into clause 14 and then, I am afraid, to a further provision, before coming back.
Keir Starmer
In passing, this is just really to explain what the amendment is intended to achieve. In order to understand what is in clause 13(2), we need to look to clause 14(4) to (6), which set out what secondary data means for the purposes of this part and, thus, is to be read into clause 13.
Clause 14(6) states:
“The data falling within this subsection is identifying data which…is comprised in, included as part of, attached to or logically associated with…is capable of being logically separated…and if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning”,
so it is integrally bound up with the content of the communication but capable of being separated from it.
So far as clause 13 is concerned, if there is a targeted interception warrant, the warrant deals specifically with content and secondary data, recognising the integral link between the two. That is right and we do not quarrel with that.
Clause 13(3) is different, providing that:
“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of relevant content for examination, in breach of the prohibition in section 134(4) (prohibition on seeking to identify communications of individuals in the British Islands).”
The purpose of clause 13(3) is different. We move from the targeted warrant to the bulk warrant—an examination warrant that provides authority to examine the content that would otherwise be in breach of clause 134(4). In order to understand that, I take the Committee to clause 119, to which that relates.
Clause 119 deals with bulk interception warrants, which can be issued if conditions A and B are satisfied. Condition A deals with
“the interception of overseas-related communications”
and with “obtaining…secondary data”. The definition of secondary data is the same in that part of the Bill as it is in the part that we have just looked at. I will not test the Committee’s patience by going to that definition, but it is a consistent definition of secondary data.
Condition B sets out that the bulk warrant authorises “the interception”, which is the content,
“the obtaining of secondary data”,
which is the same as a targeted warrant but in relation to the bulk powers, and
“the selection for examination, in any manner described…of…content or secondary data”
and “disclosure”. The bulk warrant allows the interception of the content and secondary data. In and of itself, it provides for the examination on the face of the same warrant.
For content, it becomes more complicated because there is a safeguard, which is in clause 134(4)—safeguards in relation to examination materials. Having provided a broad examination power, there is then a safeguard for that examination power in clause 134(4). A number of conditions are set for examining material that has been obtained under a bulk interception warrant. They are set out in subsection (3) and the first is that
“the selection of the intercepted content for examination does not reach the prohibition in subsection(4)”
which is that
“intercepted content may not…be selected for examination if— any criteria used for the selection of the intercepted content…are referable to an individual known to be in the British Islands at that time, and the purpose of using those criteria is to identify the content”.
The long and short of it is that, going back to clause 13, a targeted intercept warrant authorises the examination of both content and secondary data.
For a bulk warrant—this is where clause 13(3) kicks in—there is provision for an examination warrant which provides an ability to look at the content, which in all other circumstances would be a breach of the prohibition in clause 134. The content of communications of individuals in the British Isles can be looked at when it has been captured by a bulk provision, but only when there is a targeted examination warrant. That is a good thing.
What the amendment gets at is this. What is not in clause 13(3) is any provision for an examination warrant in relation to secondary data, so for the targeted provisions these two are treated as one: secondary data integral to the content of communication. When it comes to bulk, they are separated and only the content is subject to the further provision in clause 13(3).
That is a material provision and is a big part of the legislation because, unless amendment 57 is accepted, a targeted examination warrant is not required for secondary data, which are capable of being examined simply under the bulk powers. The purpose of the amendment is to align subsections (2) and (3) and ensure that the targeted examination warrant is not required for both content and secondary data in relation to individuals in the British Isles. The result otherwise would be that, for someone in the British Isles, their secondary data could be looked at as long as it was captured under a bulk provision without a targeted warrant. That is a serious drafting issue of substance.
Our approach to some of the wider retention of bulk powers is this. Although we accept that a case can be made for retaining data that will be looked at later, the wide powers of retentional bulk are a cause of concern on both sides of the House. When it comes to examining what has been caught within the wider net, there are specific safeguards. In other words, as long as there is a specific targeted safeguard when someone wants to look at bulk or retained data, that is an important safeguard when they are harvesting wide-ranging data. That is a very important provision in relation to secondary data.
Amendments 59 and 60 go to a different issue. They are separate and I ask the Government to treat them as separate. The first is about content and secondary data as a hom-set and whether they should be protected in the same way throughout the regime of the legislation, however they are initially intercepted. That is an important point of principle that I ask the Government to consider seriously because it goes to the heart of the question of targeted access.
The second amendment relates to individuals in the British Isles. At the moment, clause 13(3) provides specific protection in relation to the content of communications for people in the British Isles. It is clear from clause 134(4) that that means not residing in the British Isles, but actually in the British Isles. Under clause 13(3), once I get to Calais, I fall out of the protection of that provision, as does everybody else in this Committee, because it is a question of whether someone is physically in the British islands. Therefore, a targeted examination warrant for the content of my communications gathered by bulk powers would not be needed once I got halfway across the channel. Until I went through the analysis, I did not fully appreciate that, and serious consideration is required for both content and secondary data. More generally within amendment 59 are provisions relating to individuals not normally in the British islands or within the countries specified in amendment 60.
I am sorry to have referred to other clauses, but I could not work this out until I went through that torturous route. The net result is a disconnect between content and secondary data, which goes to the heart of protection when it comes to bulk powers. Clause 13(3) is really important for bulk powers and is one of the most important provisions in the Bill, so we have to get it right.
The limit of clause 13(3) to individuals in the British islands is unsustainable and needs further thought. Amendments 59 and 60 intend to remedy that defect. If there is an appetite in the Government to look carefully at those provisions, there may be a different way of coming at the problem, but it is a real flaw in the regime as it is currently set out. I apologise for taking so long to get to that, Ms Dorries. It required a cold wet towel on one afternoon last week to work my way through this, but once we go through the exercise, we realise there is a fundamental problem that either has to be fixed or adequately answered.
Joanna Cherry
I am 100% with the hon. and learned Gentleman in his description of the clause. Indeed, many clauses of the Bill require the application of a cold wet towel or a bag of ice to the head followed by copious amounts of alcohol later in the evening.
Amendments 57 and 83 bear my name and that of my hon. Friend the Member for Paisley and Renfrewshire North. I wish to emphasise the importance of those amendments, which foreshadow important amendments in respect of bulk powers that the Scottish National party intends to table at a later stage. Our amendments would apply the same processes and safeguards for the examination of information or material obtained through bulk interception warrants and bulk equipment interference warrants, irrespective of whether the information or material pertains to individuals in the British Isles, and to require a targeted examination warrant to be obtained whenever secondary data obtained through bulk interception warrants and equipment data and information obtained through bulk interference warrants are to be examined.
In order to gain an understanding of the background to this amendment, I invite hon. Members to look back at the evidence of Eric King to the Committee on 24 March. He explained to us how GCHQ examines bulk material. The targeted examination warrant available on the face of the Bill fails to cover the aspect of communication that is most used by agencies such as GCHQ: metadata, or secondary data, as it is referred to in the Bill.
Simon Hoare
The hon. and learned Lady might have chosen a better witness. If I recall, the gentleman in question admitted in answer to my hon. Friend the Member for Louth and Horncastle that he had had no experience at all in the application for or determination of any warrants. He had never had any security clearance either, so I am uncertain why he is being prayed in aid.
Joanna Cherry
I must say that I do not like the approach of traducing witnesses. If I do not like a witness’s evidence, I will not traduce them; I will just try to forensically dissect their evidence. This is a distinguished witness with significant experience in this field.
Joanna Cherry
No, I will not give way. I am going to finish. Because of his technical expertise, Mr King has been of enormous assistance to myself and my hon. Friends in the Labour party in drafting amendments.
Joanna Cherry
Hon. Members may “Ah” and “Um”, but Mr King has relevant technical expertise. I invite hon. Members to consider his CV.
Joanna Cherry
No, I will not. I will continue to make my point. The amendment was tabled because there should be a requirement to apply for an examination warrant when seeking to examine secondary data. That would protect the privacy of our constituents—I am looking at Government Members—and us. It is not some idle attempt of the chattering classes to be difficult about the Bill; it is an attempt to make the Bill compliant with the rule of law and with the requirement to protect the privacy of our constituents. That is all it is about. Criticising and making ad hominem comments about a witness are not going to undermine the moderate—
Joanna Cherry
No, I will not give way. There will be plenty of opportunity for the hon. Lady to contribute later. I am conscious of the time, Chair, so I will briefly—
Joanna Cherry
No, I will not. I want to continue making my point. Without the amendment, which we support, a GCHQ analyst would be able to search for and view non-content material of anyone in the United Kingdom without a warrant. I do not believe that that is right, necessary or proportionate.
Let us look at what the Intelligence and Security Committee said. If Government Members do not like Mr King’s evidence, let us set him to one side and look at the ISC. Government Members might find its approach more palatable or less easy to criticise. In the ISC’s response to the draft Bill, it highlighted the significant concern that the secondary data, including that derived from content, would not be protected. It said:
“To provide protection for any such material incidentally collected, there is a prohibition on searching for and examining any material that relates to a person known to be in the UK (therefore, even if it is collected, it cannot be examined unless additional authorisation is obtained). However, these safeguards only relate to the content of these communications. The RCD relating to the communications of people in the UK is unprotected if it is collected via Bulk Interception. In direct contrast, if the same material were collected and examined through other means (for example, a direct request to a CSP) then the draft Bill sets out how it must be authorised”.
The ISC expressed a concern that the amendment attempts to address. Because no examination warrant is required for secondary data, a variety of highly intrusive acts could be undertaken without additional authorisation by individual analysts. That is all that the amendment is seeking to address. In my respectful submission, it is appropriate, necessary and proportionate.
Mr Hayes
As the hon. and learned Gentleman was speaking—he recalled having a cold towel placed upon him last week—I wondered, as his peroration ranged across so many different clauses of the Bill, whether he wished the same fate for the whole Committee, although I fully appreciate his point on the complexities of this particular area of our consideration. They are such that, to get to the basis of why he tabled the amendments, it is necessary to look across a range of parts of the Bill.
In essence, this is probably the difference between us—perhaps it is not, but let me present that at least as my hypothesis. We recognise, as the Bill reflects, that different levels of authorisation should apply in relation to different investigative techniques. I think the hon. and learned Gentleman is with us that far, but it is important to say why those different levels should apply. The differences plainly reflect the different operational contexts in which the powers are exercised, and that includes the different organisations, how they use the capabilities, and the statutory purposes for which those capabilities are utilised. We are absolutely clear that those differences are necessary, and that the safeguards that apply to different powers are satisfactory, coherent and effective.
Keir Starmer
I have checked the evidence, and perhaps the Minister can tell the Committee why it is necessary to distinguish between the protection offered to content and secondary data in relation to bulk warrants, when it is not necessary for targeted warrants. They are treated exactly the same for targeted warrants, but he says that it is necessary to distinguish between them for bulk warrants. What is the necessity? Can he spell it out, please?
Mr Hayes
I will try to do that during my response. If one recognises that a different process should apply in the exercise of different powers, contextualised around the operational function of the organisations that are exercising the powers and the purposes for which the powers are being exercised, one begins to appreciate that what might, at first reading, look like inconsistency is not an error or an inconsistency but is a necessary application of different sets of both powers and safeguards for different needs. I will address the hon. and learned Gentleman’s specific point as I go through my response.
Amendment 57 would extend the requirement to obtain a targeted examination warrant to circumstances in which an agency wishes to select for examination the secondary data, as opposed to content, relating to the communications of an individual who is known to be in the UK when the data have been obtained under a bulk interception warrant. Essentially, secondary data are less intrusive than content; their collection and the circumstances in which they may be examined are directly subject to double-lock authorisation. Furthermore, it is necessary to say that it is sometimes important, indeed essential, to examine secondary data to determine whether someone is in the UK. That does not provide an entire answer to the hon. and learned Gentleman’s question on the difference, but it provides some answer to the argument about where someone resides at a given point in time.
The targeted acquisition of communications data, provided for in part 3 of the Bill, including data relating to individuals in the United Kingdom, currently requires the designation of an authorised person within an organisation. The hon. and learned Gentleman acknowledged that we have taken further steps, which I will talk about later, following the recommendations of David Anderson—forgive me, but this is quite a complex area, and I need to go into it in some detail.
In contrast, bulk interception warrants, which authorise the collection of communications in bulk and set out the circumstances in which material that has been collected can be selected for examination, are subject to the double-lock authorisation of both the Secretary of State and a judicial commissioner. That means that the acquisition of content and secondary data, and the operational purposes for which any of the data can be selected for examination, is explicitly authorised by the Secretary of State and a judicial commissioner when the warrant is approved. The agencies can only select material for examination when it is necessary and proportionate to do so, in line with one or more operational purposes authorised when the warrant is granted.
Where the security and intelligence agencies wish to look at the content of the communications of an individual in the United Kingdom under a bulk interception warrant, they will need to obtain a targeted examination warrant, which reflects the recommendations from the independent reviewer, David Anderson. I draw attention to his report, “A Question of Trust,” with which members of the Committee will be familiar. The report addresses precisely this point in recommendations 79 and 80 on the use of material recovered under bulk warrants. The regime reflects the well-recognised distinction between less intrusive data obtained through these powers and content—
Investigatory Powers Bill (Fourth sitting)
Tuesday 12th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
The Chair
I remind the Committee that with this we are discussing the following:
Amendment 58, in clause 13, page 10, line 17, leave out from “examination” to end of line 18.
Amendment 59, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert
“of material referable to an individual known to be in the British Islands at that time, or British citizen outside the British Islands at that time.”
Amendment 60, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert
“of material referable to an individual known to be in the British Islands at that time, or British, Canadian, American, New Zealand or Australian citizen outside the British Islands at that time.”
Amendment 83, in clause 13, page 10, line 22, after “6”, insert—
“In this Part “secondary data” means—
(a) in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);
(b) in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).”
The Minister for Security (Mr John Hayes)
I am delighted to welcome you to the Chair, Mr Owen. In your absence, under the stewardship of Ms Dorries, we had enlightening and rigorous scrutiny of the early provisions of the Bill and had got to the point of considering the third group of amendments. They are complicated, as illustrated by the shadow Minister’s opening remarks. I was about to go into some detail about the safeguards that we have put in place. So that we are all up to speed, I will mention that I had referred briefly to the recommendations made by the independent reviewer, Mr David Anderson, in his report, “A Question of Trust”, in relation to this area of the Bill—the use of material recovered under bulk warrants. I had reminded the Committee that the provisions before us reflect that advice. The Government have essentially taken the advice of David Anderson and built it into the Bill that we are now considering.
The current bulk access safeguards under the Regulations of Investigatory Powers Act 2000 have, of course, recently been scrutinised by the Investigatory Powers Tribunal. After extensive argument, the tribunal ruled that the current approach fully met the UK’s obligations under the European convention on human rights. In particular, the tribunal ruled that it was not necessary to apply the protections that apply to content to related communications data—the other data associated with a communication but not its content that has been redefined as secondary data in the Bill—to ensure ECHR compliance.
Both targeted and bulk warrants authorise the collection of content and secondary data. That, I think, clears up one of the doubts that some Committee members may have had. A bulk warrant also authorises the circumstances in which content and secondary data can be selected for examination. The Secretary of State and the judicial commissioner, when authorising warrants, agree the operational purposes that determine what content and what secondary data can be examined. In other words, at the point when the warrant is issued, both the judicial commissioner, in the arrangements that we propose, and the Secretary of State, in those arrangements and now, are fully aware of the operational reasons for the request. There is no distinction in those terms—again, I think this addresses some of the points raised by the hon. and learned Member for Holborn and St Pancras—between content and secondary data.
Where the difference comes is in relation to the additional protections for persons in the UK. In fact, the hon. and learned Gentleman made reference to this. The Bill makes it clear that examination of the content, once it has been collected, of data relating to persons in the UK can take place only when an additional warrant has been issued. People should bear it in mind that there will already be a bulk warrant authorising collection; this is a separate process from the collection of data. An additional warrant must be issued that specifically authorises examination. There is a warrant to collect data and another warrant to examine data, and at the point when those warrants are considered by the Secretary of State and, under these new arrangements, by the judicial commissioner, the purposes will be clearly defined. The Secretary of State will be aware of why the request is being made and why it matters.
We talked earlier, in a different part of our consideration, about authorising powers only where they are necessary because nothing else will do the job—the point raised by the hon. and learned Gentleman. I want to emphasise that those considerations, around the broad issues—they are no less important because of their breadth—of proportionality and necessity, will govern all these matters.
Keir Starmer (Holborn and St Pancras) (Lab)
To clarify, I think I heard the Minister say—if I misheard him, he can ignore this intervention—that two bulk warrants would be put forward at the same time; one for the intercept and one for the examination. However, I am not sure that is right. I had always read this as one warrant within which different types of conduct are authorised. Therefore, the warrant could—I am looking at clause 119(4)—authorise both the interception and the selection for examination. I may be wrong about that, but I had always understood that one warrant would authorise all the conduct in one fell swoop at the beginning, rather than there being two warrants. If I misheard, I apologise.
Mr Hayes
Essentially, in order to obtain collection—to have bulk collection and examination—a warrant is required. The Bill makes it clear that the examination of content of persons in the UK requires an additional warrant. That is the point I was making.
Authorisation for persons in the UK does not apply to secondary data, because it is often not possible to determine the location of a person without taking those data. The reason why it looks like there is an inconsistency in respect of a set of data—or it might be perceived that way, without fuller consideration—is that, in relation to secondary data, it is not always possible to determine where someone is until the secondary data have been collected.
The point I made earlier was that it is a well and long-established principle that non-content is less important and less intrusive than content. Content is likely to be more intrusive, so what we are describing in these terms replicates the existing position—the long-established practice—which, as I said, was upheld by the Investigatory Powers Tribunal. This is the existing practice, and it has been examined and found to be appropriate and reasonable. I mentioned ECHR compliance in that respect.
I have described the existing regime and its examination, but the regime proposed under the Bill further enhances the safeguards that the security and intelligence agencies already apply when accessing data obtained under a bulk interception warrant. The access arrangements are set out in part 6 of the Bill: for example, secondary data, as well as content, can be accessed only for one or more of the operational purposes specified on the warrant and approved by the Secretary of State and the judicial commissioner. The Bill also includes a requirement that an analyst must consider the necessity and proportionality of any access to any data obtained under a bulk interception warrant in line with the operational purposes. Without putting words into the mouths of Committee members, it could be argued that it is all very well setting out the operational purposes at the outset and that, further, at that point they might be deemed to legitimise the use of the powers in terms of necessity and proportionality, but that that might not be the case further down the line. It is therefore important that we have introduced further analysis of the data collected under the bulk warrant, rather than just when collection is authorised.
Extending targeted examination warrants to non-content data, including secondary data, which is what the amendments propose, would be disproportionate and impractical. That would radically change the bulk data regime, reduce its efficacy and place a substantial burden on the security and intelligence agencies, requiring them to obtain highest level authorisation for data that would often resemble the kind of information routinely collected under a part 3 authorisation.
Joanna Cherry (Edinburgh South West) (SNP)
I remind the Minister that when I spoke before lunchtime, I highlighted the fact that the Intelligence and Security Committee has a concern about secondary data derived from content not being protected. What does the Minister make of the ISC’s concerns? Why have the Government dismissed them?
Mr Hayes
I wondered whether the ISC might be raised in this respect. Of course the hon. and learned Lady is right. With her typical diligence she has identified that the ISC does indeed make that point. The answer to the question is that we welcome scrutiny and we invite consideration of these proposals. All of the Committees that looked at these matters made a whole series of recommendations, some of which the Government accepted with alacrity, some of which the Government continue to consider, and some of which the Government do not agree with. It is true that that point has been made, and I said that this might reasonably be argued. However, I think that we have gone far enough in this area in balancing the proper desire for effective safeguards with the operational effectiveness of the agencies.
Bulk collection is really important. Without giving away too much sensitive information, I can happily let the Committee know that as Security Minister I have visited GCHQ, as the Committee would expect me to do. I have looked at the kind of work the staff there do in respect of bulk data collection, and I have seen the effect it has. Contrary to what might be described as a rather crude view of what bulk collection is all about, it is not searching for a needle in any haystack; it is being highly selective about which haystacks are looked at. It is about trying to establish connections, networks and relationships between organisations and individuals; places and people. I have no doubt that without these powers the work of our intelligence and security services would be inhibited. However, I accept that safeguards are needed: I do not for a moment suggest anything else.
I turn now to amendments 58, 59 and 60. These amendments seek to extend the circumstances in which a targeted examination warrant is required beyond the current situation in the Bill, such that they are not limited to persons in the UK. The intention of amendment 58 appears to be that an individual targeted examination warrant would be required from the Secretary of State and a judicial commissioner each time an analyst in an intelligence agency wished to examine the content of any communications acquired under a bulk data interception warrant. This would apply irrespective of where in the world the sender or recipient of the communication was located. As currently drafted, the Bill makes it clear that a targeted examination warrant must be sought if an analyst wished to examine the content of communications of individuals in the British islands which had been obtained under a bulk interception warrant.
Amending the scope of a targeted examination warrant as proposed would, in my view, fundamentally alter the operation of the bulk regime. I am advised to that effect by those who use these powers. There is plainly a rational justification for treating the communications of persons known to be in the British Isles differently to those of persons who are believed to be overseas. Within the UK, the interception of communications is a tool that is used to advance investigations into known threats, usually in conjunction with other capabilities and other tools. Of course, serious investigations of the kind we are talking about are complicated, and very often this will be only one of the means that are used to establish the patterns of activity of the networks I have described and the threats that I have outlined.
Christian Matheson (City of Chester) (Lab)
I seek the Minister’s clarification more than anything else. Is there a view in the Government that there is a difference between the external threat of people who are not in the British Isles and also are not British citizens, as opposed to those who are British citizens? Is it the Government’s view that we have a responsibility to protect the privacy of British citizens, as we are charged to do, as opposed to those who may present an external threat to the United Kingdom?
Mr Hayes
We legally have different responsibilities with respect to UK citizens. The hon. Gentleman is absolutely right. UK citizens are protected by all kinds of legal provisions, not only those in this Bill, far from it. He is absolutely right that different circumstances prevail. However, it is slightly more complicated than that, as he knows. We may be talking about people who are British but not in Britain at a particular time, or people who are not British but in Britain at a particular time. We may be speaking about people who are moving in and out of the country. These are often quite complex webs about which we are trying to establish more information. Of course, things such as surveillance and agent reporting will pay a part in this. All the conventional means by which these things are investigated would interface with the tools that the agencies currently use and are given greater detail and more safeguards in the Bill. The hon. Gentleman is right to say that we should have an approach that is appropriate to the circumstances and the kind of people we are dealing with.
It is important to emphasise again that applications for targeting reception warrants will be supported by a detailed intelligence case. There has to be a clear operational purpose—a case needs to be made. That means that the Secretary of State must be satisfied that the use of these powers is appropriate. The Bill quite rightly ensures that the agencies must provide the same detailed case if they want to examine communications of a person in the UK that have been intercepted under a bulk warrant.
The hon. Gentleman’s point about threats outside the UK is important, because it is often only through bulk powers of the kind detailed in the Bill that we are able to discover threats outside the UK, particularly in countries such as Syria where we may have little or no physical presence and limited cover in respect of the security services, for obvious reasons. In those circumstances, the amount of information we have to deal with being very limited, bulk interception plays a critical part. It will often be necessary to examine the communications of individuals outside the UK, for obvious reasons, based on partial intelligence—the limited intelligence we have—in order to determine whether they merit further investigation or in order sometimes to eliminate people from the inquiries. Many of the powers that I am describing—indeed many of the powers in the Bill—as well as identifying, qualifying and making further steps more exact, are about eliminating people from consideration, because once we know more, we know they do not pose a real or current threat. It is therefore really important that we understand that this plays a vital role in mitigating the threat to the UK from overseas.
Requiring an analyst to seek permission from the Secretary of State or the judicial commissioner every time they consider it necessary to examine the content of a communication sent by a person outside the UK would inhibit the ability of the security and intelligence agencies to identify new and emerging threats from outside the UK.
I want to emphasise that the scale and character of the threats we face have changed and continue to do so. This is partly because of changing technology, the way in which people communicate, the adaptability of those who threaten us and the complexities of the modern world. Unless we have powers that match—indeed, outmatch—the powers that are in the hands of those who seek to do us harm, we will simply not be able to mitigate those threats in the way that is needed in defence of our country and countrymen.
The current bulk access safeguards under the Regulation of Investigatory Powers Act 2000 have recently been scrutinised. The Investigatory Powers Tribunal found in particular that there was sufficient justification for enhanced safeguards to be applied only where an analyst is seeking to examine the content of people in the British Isles. Nevertheless, the Bill enhances the safeguards and while I am sympathetic to the aims of amendments 59 and 60, they present practical challenges in their own right.
As hon. Members will appreciate, overseas-based individuals discovered in the course of an investigation do not uniformly present their nationality and passport details to agencies, so in practical terms the agencies will simply not be able to do what the amendments require. The amendments could also give rise to discrimination issues. As I explained, there is a clear justification for applying different safeguards to persons located outside the UK, but it is by no means clear that it is necessary to apply different protections to people of a particular nationality. Accordingly, providing for such a distinction in law could place the UK in breach of its international obligations, particularly our obligation not to discriminate on grounds of nationality.
It is right that we take a view about people who are operating in a way that is injurious to our interests from outside the UK, but it is equally right that we do not make prejudgments. Again, we are trying to strike a balance in this part of the Bill. The aim of the Bill is to place vital powers on a statutory footing that will stand the test of time. I believe that the strongest safeguards for the examination of communications, taking into account the challenges of identifying threats outside the UK, are necessary, and that we are in the right place with the Bill.
Finally, amendment 83 relates to the clause 14 definition of secondary data, which sets out how it can be obtained through an interception warrant provided for in part 2 of the Bill. The amendment seeks to replace the current definition in the Bill with a narrower one.
Suella Fernandes (Fareham) (Con)
Welcome to the Chair, Mr Owen, for my first contribution to this Committee.
Regarding amendments 59 and 60, is it not the position that bulk interception is provided for under section 8(4) of RIPA and is therefore subject to tests of necessity and proportionality? If it relates to a British citizen within the British Isles and an analyst wishes to select for examination the content of the communication of an individual known to be located in the British islands, the analyst has to apply to the Secretary of State for additional authorisation under section 16(3) of RIPA—similar to section 8(1). There are robust and extensive safeguards in place for this purpose.
Mr Hayes
I am delighted to be able to say in response to that extremely well informed intervention that my hon. Friend is right. The Bill does not actually add to bulk powers, contrary to what some have assumed and even claimed. In the sense that it reinforces safeguards and maintains the ability of our agencies to collect bulk data, it builds on what we already do. The Bill pulls together much of the powers in existing legislation; part of its purpose is to put all of those powers in one place, making them easier to understand and more straightforward to navigate. She is absolutely right; we took those powers in RIPA because they were needed to deal with the changing threats and the character of what we knew we had to do to counter them. That was done in no way other than out of a proper, responsible desire to provide the intelligence agencies with what they needed to do their jobs.
To return to amendments 59 and 60, when people are discovered to be outside the country and are subject to an investigation by the security services they do not usually present their credentials for examination, and it is important that the powers we have fill what would otherwise be a gaping hole in our capacity to do what is right and necessary. The aim of the Bill is to place vital powers on a statutory footing that will stand the test of time.
Amendment 83 relates to clause 14 and the definition of secondary data. It is important to point out that it has always been the case that an interception warrant allows communications to be obtained in full. Historically, that has been characterised in law as obtaining the content of communication and of any accompanying “related communications data”. However, as communications have become more sophisticated it has become necessary to revise the definitions to remove any ambiguities around the distinction between content and non-content data and to provide clear, simple and future-proof definitions that correctly classify all the data the intercepting agents require to carry out their functions.
Secondary data describes data that can be obtained through an interception warrant other than the content of communications themselves. Those data are less intrusive than content, but are a broader category of data than communications data. For example, it could include technical information, such as details of hardware configuration, or data relating to a specific communication or piece of content, such as the metadata associated with a photographic image—the date on which it was taken or the location—but not the photograph itself, which would, of course, be the content.
I want to make it clear that the data will always, by necessity, be acquired through interception. The definition does not expand the scope of the data that can be acquired under a warrant, but it makes clearer how the data should be categorised. Interception provides for the collection of a communication in full and the amendment would not serve to narrow the scope of interception. It would, however, reduce the level of clarity about what data other than content could be obtained under a warrant. It would also have the effect of undermining an important provision in the Bill. In some cases secondary data alone are all that are required to achieve the intended aim of an operation or investigation. That is an important point. Another misconception is that it is always necessary to acquire content to find out what we need to know. In fact, sometimes it is sufficient to acquire simpler facts and information. For that reason, clause 13 makes it clear that obtaining secondary data can be the primary purpose of an interception, and the kind of data that can be obtained under a warrant is also set out.
Narrowing the scope of secondary data would reduce the number of occasions on which the operational requirement could be achieved through the collection of those data alone, resulting in greater interference with privacy where a full interception warrant is sought. Where we do not need to go further we should not go further. Where secondary data are sufficient to achieve our purposes, let that be so.
Secondary data are defined as systems data and identifying data included as part of or otherwise linked to communications being intercepted. Systems data is any information that enables or facilitates the functioning of any system or service: for example, when using an application on a phone data will be exchanged between the phone and the application server, which makes the application work in a certain way. Systems data can also include information that is not related to an individual communication, such as messages sent between different network infrastructure providers, to enable the system to manage the flow of communications.
Most communications will contain information that identifies individuals, apparatus, systems and services or events, and sometimes the location of those individuals or events. The data are operationally critical to the intercepting agencies. In most cases, the information will form part of the systems data, but there will be cases when it does not. When the data are not systems data and can be logically separated from the communication, and would not reveal anything of what might reasonably be considered to be the meaning of the communication, they are identifying data. For example, if there are email addresses embedded in a webpage, those could be extracted as identifying data. The definitions of systems data and identifying data make clearer the scope of the non-content data that can be obtained under the interception warrant.
The fact that the definition of secondary data is linked to clear, central definitions of systems and identifying data ensures that there can be consistent application of powers across the Bill to protect privacy and that data can be handled appropriately regardless of the power under which it has been obtained.
Christian Matheson
Mr Owen, it is traditional that hon. Members recognise the Chair. I do so not only because of your consummate skills in chairmanship, but because as the Member for Ynys Môn you bring back happy childhood memories of many childhood summer holidays in Benllech, Red Wharf Bay, Llangefni market and suchlike.
I listened to the Minister’s detailed explanations—I pay tribute to him for the length and the detail he went to—sometimes with the vision of a wet towel around my head invoked by my hon. and learned Friend the Member for Holborn and St Pancras. This is not a very politically correct thing to say and hon. Members may find it disappointing, but frankly I do not give a tinker’s cuss whether, in the defence of the realm, we seek access to information from outside the UK or outside British citizenry. Parliament has a responsibility to this country and we will exercise that. As we have discussed, we also have a responsibility to British citizens to respect their privacy. The crux of the Bill is the balance that we will achieve between those two competing demands.
I am not clear yet, particularly in respect of the point made by my hon. and learned Friend, as to whether the question of secondary data that will be extracted and that affects UK citizens has been correctly answered. If the Minister can give an assurance—I appreciate that he has already given a long and detailed answer—of his confidence that the privacy of UK citizens or people within the UK can be properly protected, I am sure we would be able to move on. The balance that we need to strike between protecting the privacy of UK citizens and protecting their personal security and the security of the nation is difficult.
Mr Hayes
To be absolutely clear, the means of the acquisition of content and secondary data and the operational purposes for which those data can be selected for examination will be explicitly authorised by the judicial commissioner and the Secretary of State. The operational case for the collection of those data must be explicit and sufficiently persuasive that the warrant is granted by the Secretary of State and by the judicial commissioner. I hope that gives the hon. Gentleman the assurance he desires.
Christian Matheson
I am most grateful for that assurance and explanation and, indeed, for the previous explanation. The Minister has gone into considerable depth on the matter and I am most grateful for that.
Keir Starmer
I, too, welcome you to the Chair of this Committee, Mr Owen. It is a privilege to serve under your chairmanship.
The assurance that has just been asked for cannot be given because the whole purpose of the provision is to enable the secondary data of any of us in this room that is caught by a bulk interception warrant to be looked at without any further warrant. If my data is swept up in a bulk interception warrant, even though I am not the target it can be examined without a separate warrant. That goes for every member of the Committee, every member of the public and everybody residing in the British Isles. The neat distinction between people here and people abroad breaks down in relation to this clause. I want us to be clear about that. The Minister is making the case that that is perfectly appropriate and necessary and that there are sufficient safeguards in place, but he is not making the case that this would not happen for those in the British Isles. It can and undoubtedly does happen, and it will happen under this regime. That means that all our secondary data are caught by this provision, even where we are not the primary target.
The Minister pointed to the double lock and the roles of the Secretary of State and judicial commissioner. He took an intervention on that, but I want to be absolutely clear on what those roles are and how necessity and proportionality play out. Clause 125 sets out what requirements must be met by a bulk interception warrant. Subsection (3) says:
“A bulk interception warrant must specify the operational purposes for which any intercepted content or secondary data obtained under the warrant may be selected for examination.”
The Minister points to that and says that there has got to be an operational purpose, which is true. However, we then read just how specific that operational purpose is likely to be:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”.
Those are just the general descriptions of national security and preventing serious crime, so it is not enough to say that the operational reason is national security or to prevent serious crime. Well, good—that that is all that had to be specified, it would not be very much. However, the purposes may still be general purposes, so the operational purposes are likely to be very broad—necessarily so in practical terms, given that it is a bulk warrant.
The role of the Secretary of State and the judicial commissioner is to decide whether the warrant is necessary and proportionate according to those purposes. We keep using the words “necessary and proportionate”. We have to keep an eye on what the object of the necessity and proportionality is. The question for the Secretary of State and the judicial commissioner is whether it is necessary and proportionate for the very broad operational purposes that are permitted under clause 125. It is not a very detailed, specific examination by the Secretary of State or the judicial commissioner; nor could it be.
At some later date, there is further consideration when it comes to examination. If it was suggested that at the later stage of actual examination, rather than authority for examination, it goes back to the Secretary of State and judicial commissioner, that is just plain wrong. It does not go back at all. All that the judicial commissioner or Secretary of State do is to authorise the general purposes under the warrant. As far as selection is concerned, that is governed by clause 134(1) and (2). Subsection (2) specifies that:
“The selection of intercepted content or secondary data for examination”
—that is at the heart of what we are talking about—
“is carried out only for the specified purposes”.
That relates to back to subsection (1). It continues,
“only so far as is necessary”
—necessary to what? It then refers straight back to the “operational purposes” set out in clause 125. Even at that later stage, the question of necessity and proportionality is against the very broad operational purposes. The Minister has been very clear about this and I am not suggesting otherwise, but the idea that there is some forensic and carefully curtailed exercise that looks in detail at the individual circumstances of the case is pretty far-fetched. In the end, all anyone has to do is ask whether it is necessary or proportionate to the general operational purposes upon which the warrant was issued in the first place. That is very different from the test set out for targeted interception. It is the test that will be applied to all the secondary data of anybody in this room who ever finds themselves caught up in a bulk interception warrant. That is not far-fetched. There will be many bulk intercept warrants, which may well capture the content and secondary data of many members of the public who are not targets in any way.
As a result, although I applaud the Minister for his long and detailed answer, it was not very persuasive regarding the necessity of this scheme or the effectiveness of the safeguards. Simply saying that secondary data may be necessary to determine location is hardly enough to justify the provision. I recognise that secondary data are different to content and that bulk powers are different from targeted powers, but in the end, when this is unravelled, it shows that there is no effective safeguard. In the circumstances we will not divide the Committee on the amendment, but I reserve the right to return to the matter at a later stage. It goes to the heart of the Bill. When properly analysed and understood, the safeguard in this respect is barely a safeguard at all.
Mr Hayes
I do not want to delay the Committee unduly, but I will offer this response. First, I direct the hon. and learned Gentleman to the “Operational Case for Bulk Powers”, which specifies the ways in which bulk powers will be used. The operational case will be specific. I am grateful to him for not pressing the amendment. I am happy to write to the Committee to reinforce our arguments and I think that we might reach a Hegelian synthesis—I am very keen on Hegel, as he knows. I agree that it is often necessary to examine the secondary data to determine the sender—he knows that that is the case—but I disagree about the lack of specificity on the operational purposes. We cannot give too much detail on that, for the reasons of sensitivity that he will understand, but I am happy to write to him to draw his and the Committee’s attention to the “Operational Case for Bulk Powers”, which is targeted at overseas threats but might, as he properly said, draw in some data from those who are in the UK. I hope that when I write to him he might decide not to bring these matters back further. I am grateful for his consideration.
Joanna Cherry
I, too, welcome you to the Chair, Mr Owen. It is a pleasure to serve under your chairmanship.
Before lunch, I spoke to amendment 83, concerning secondary data. I did not speak to amendment 84, because it was tabled but not selected, but it is really a corollary: it proposes leaving out clause 14.
I have listened carefully to what the Minister has said and I am grateful to him for his detailed explanation, but he does not take on board the concerns that I attempted to articulate on secondary data, notwithstanding the fact that similar concerns were articulated by the Intelligence and Security Committee. We will have to agree to differ for the time being. I associate myself with the comments made by the hon. and learned Member for Holborn and St Pancras about the other issues relating to the these amendments, in particular his pertinent and typically incisive point about clause 125(3).
Having sought clarification this morning from the Chair on the voting procedures, I do not intend to push the amendment to a vote, because I think that I would end up with something of a pyrrhic victory. However, I emphasise that I stand by the necessity for the grouped amendments and wish to revisit them later during the passage of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Clause 14
Obtaining secondary data
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I tabled an amendment to delete clause 14. I do not think it has been selected, but I have made my position clear. I wish to revisit this issue at a later stage.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Subject-matter of warrants
Joanna Cherry
I beg to move amendment 4, in clause 15, page 12, line 3, leave out “or organisation”.
This amendment, and others to Clause 15, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals while requiring an identifiable subject matter or premises to be provided.
The Chair
With this, it will be convenient to discuss the following: amendment 5, in clause 15, page 12, line 8, after “activity” insert
“where each person is named or otherwise identified”.
Amendment 6, in clause 15, page 12, line 9, leave out “or organisation”.
Amendment 7, in clause 15, page 12, line 11, after “operation”, insert
“where each person is named or otherwise identified”.
Amendment 8, in clause 15, page 12, line 12, leave out paragraph (2)(c).
Amendment 9, in clause 15, page 12, line 13, leave out subsection (3).
Amendment 52, in clause 27, page 21, line 7, leave out ‘or organisation’.
Amendment 53, in clause 27, page 21, line 8, leave out ‘or organisation’.
Amendment 54, in clause 27, page 21, line 13, leave out
‘or describe as many of those persons as is reasonably practicable to name or describe’ and insert ‘or otherwise identify all of those persons’.
Amendment 55, in clause 27, page 21, line 15, leave out ‘or organisation’.
Amendment 56, in clause 27, page 21, line 19, leave out
‘or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe’ and insert ‘all of those persons or sets of premises’.
Joanna Cherry
The effect of these amendments to clause 15 would be to retain the capacity of a single warrant to permit the interception of multiple individuals but require an identifiable subject matter or premises to be provided. Associated amendments to clause 27 would be required. This would narrow the current provisions, which, in my submission, effectively permit a limitless number of unidentified individuals to have their communications intercepted.
As drafted, clause 15 permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. That is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity, and
“name or describe as many of those persons…as…is reasonably practicable”.
The creation of thematic warrants in the Bill means that communications intercepted in their billions under part 6 could be trawled thematically for groups sharing a common purpose or carrying out a particular activity. The difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people, and the expansive scope of these warrants, combined with the broad grounds with which they can be authorised, does not impose sufficient limits on the authorities’ interception powers.
The existence of thematic interception warrants was avowed by the Secretary of State in March 2015. The Intelligence and Security Committee has reported that the significant majority of section 8(1) warrants under RIPA relate to one specific individual but that some do not apply to named individuals or specific premises, and instead apply to groups of people. The current Home Secretary has apparently derived the authority to do so from a broad definition given to the word “person” that is found elsewhere in RIPA, despite the unequivocal reference to “one person” in section 8(1) of RIPA. I suggest that what has gone on in the past is a very unorthodox statutory construction.
Be that as it may, in considering the terms of this Bill the ISC has reported that the Interception of Communications Commissioner has
“made some strong recommendations about the management of thematic warrants”
and in some cases recommended that they be cancelled. The ISC has expressed further concerns about the extent to which this capability is used and the associated safeguards that go along with it. It has suggested that thematic warrants must be used sparingly and should be authorised for a shorter time than a standard section 8(1) warrant.
Reporting on the draft version of the Bill, the ISC noted that “unfortunately”—the Committee’s word—its previous recommendation about thematic warrants
“has not been reflected in the draft Bill”;
nor has it been reflected in the revised Bill, in which the scope for thematic warrants remains unchanged. It is not only the ISC that has concerns about this issue. The Joint Committee on the draft Bill also recommended that
“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants”.
Many lawyers believe that the scope of warrants permitted under clause 15 as drafted would fail to comply with both the common law and European Court of Human Rights standards, as expounded in a very recent decision in Zakharov v. Russia from 4 December 2015. In that case, the ECHR found that Russia’s interception scheme was in violation of article 8 of the European convention on human rights. Also, the Court cited the fact that Russian courts sometimes grant interception authorisations that do not mention a specific person or a specific telephone number to be tapped but authorise interception of all telephone communications in the area where a criminal offence has been committed. Although thematic warrants do not relate to geographical location, in my view and that of many far more distinguished lawyers, they are sufficiently broad to violate article 8 of the convention. Our amendments are required to make clauses 15 and 27 compatible with that article.
Victoria Atkins (Louth and Horncastle) (Con)
Is the purpose of the clause to address those circumstances where, for example, the security services or police know that someone has been kidnapped, but they do not know the names of the kidnap gang or even perhaps the number of gang members? The clause is designed to enable the security services to make the inquiries they need to make to save a life.
Joanna Cherry
I think I am correct in saying that this section is directed more towards security concerns than serious crime. I will no doubt be corrected, but I can only stand by what others who deal with surveillance issues have said in their evidence to the Committee. I would also like to point to what David Anderson QC said in his follow-up evidence to the Committee at paragraphs 4 and 5.
Joanna Cherry
David Anderson, in his typically helpful, studious and hard-working way followed up his oral evidence to us with some additional thoughts in written evidence. He has a section headed “Thematic Targeted Powers” in which he says:
“I recommended that the practice of issuing thematic warrants be continued into the new legislative regime…I envisaged their utility as being ‘against a defined group or network whose characteristics are such that the extent of the interference can reasonably be foreseen, and assessed as necessary or proportionate, in advance’—for example, a specific organised crime group”.
Perhaps that answers the hon. Lady’s question. He went on to say:
“I also recommended that the addition of new persons or premises to the warrant should…require the approval of a judicial commissioner, so that the use of a thematic warrant did not dilute the strict authorisation procedure that would otherwise accompany the issue of a warrant targeted on a particular individual or premises”.
His following statement is very important. He says:
“On both counts, the Bill is considerably more permissive than I had envisaged. Thus: The wording of clause 15 (interception) and still more so clause 90 (EI) is extremely broad”.
This answers the hon. Lady’s point. Even David Anderson, who envisaged thematic warrants having some utility against a defined group or network such as an organised crime group, says that the wording of clause 15 is considerably more permissive than he had envisaged.
Victoria Atkins
The hon. and learned Lady states the opinion that clause 15 is really aimed at dealing with the security services point. It is but, may I refer her to clause 18, which deals with the grounds on which warrants may be issued by the Secretary of State? It is very clear that it can be done for national security reasons but also for the purposes of preventing or detecting serious crime.
Joanna Cherry
The hon. Lady is absolutely right. I stand corrected. Fortunately I have the assistance of David Anderson on this point. He has made the point that whereas he sees envisaged their utility in identifying a defined group or network—for example, a specific organised crime group—he remains of the view that the wording of clause 15 is “extremely broad”. It should concern all members of this Committee that the independent reviewer of terrorism legislation considers the wording of this clause to be extremely broad. If the Government will not take the Scottish National party’s word for it, then they can take the word of the independent reviewer of terrorism legislation. I seek the Government’s assurance that they will go away and look again at clause 15 and clause 27 very carefully, in the light not only of what I have said but, more importantly, what has been said by Sir Stanley Burnton, Lord Judge and David Anderson.
Lucy Frazer (South East Cambridgeshire) (Con)
I thank the hon. and learned Lady for her very detailed points. Does she accept that even though David Anderson thinks that the wording is too broad, the amendments that she proposes would make the provision too narrow? If the words “or organisation” are taken out then only a person or a premises will be identified, which would not catch the circumstances that David Anderson is thinking about. In her submission, the hon. and learned Lady identified that while the current wording was too broad, some of the organisations that she mentioned did recognise that in some circumstances the thematic powers were useful.
Joanna Cherry
The hon. and learned Lady makes a point that I have to take on board to a certain extent. I suspect that my amendments to clause 15 go further than David Anderson would if he were drafting an amendment to this clause. We are at a very early stage in this procedure. I am really seeking an assurance from the Government that they will take on board, if not my concerns, then at the very least the concerns of Sir Stanley Burnton, Lord Judge and David Anderson, and that they will take away clause 15 and clause 27 and look at them again.
Keir Starmer
I will be brief because a lot of the detailed work has been done. I listened very carefully to the Minister, not only today but on other occasions, and he indicated that the Government want to improve the Bill and that they do not have a fixed view. I therefore make these submissions in the hope that the Minister and the Government will not circle the wagons around the existing formula in clause 15 simply because those are the words on the page. The warrants are supposed to be targeted, but when reading clause 15(2) it is clear that they are very wide. I will not repeat the concerns of Lord Judge, Sir Stanley Burnton and David Anderson, but they are three individuals with huge experience of the operation of these warrants.
I take the point about kidnap cases or examples of that type. They are exactly the cases that Lord Judge and Sir Stanley Burnton will have seen in real time and reviewed, and that David Anderson will have reviewed after the event. When those three distinguished individuals say that they have concerns about the breadth of the clauses, they do so against huge and probably unparalleled experience of what the warrants provide for. I doubt that anyone would suggest that they are not alive to concerns about the warrants being practical and effective in the sort of circumstances that have been described.
Simon Hoare (North Dorset) (Con)
May I put a slightly counter idea to the hon. and learned Gentleman and the hon. and learned Member for Edinburgh South West? I accept the comments of David Anderson and others, but in some instances it will not be terribly wrong to have broad definitions in the Bill. Getting legislation made in this place is a difficult and lengthy process. We must fetter those who wish this country and its citizens ill, so it is potentially a good idea to have some breadth in the definitions.
Keir Starmer
I understand the spirit underpinning the hon. Gentleman’s intervention, which is that in certain circumstances a broad power can be helpful because future situations are not known. In this case, the breadth of the provision matters above all else, however, because it concerns the subject matter of the warrant. Lest anyone think otherwise, when one looks at the code of practice, one does not find that it restricts what is in the Bill. Paragraph 5.12 of the draft code says, in stark terms:
“There is not a limit to the number of locations, persons or organisations that can be provided for by a thematic warrant.”
In certain circumstances, the Minister and the Government might be able to point to things that are broad in the Bill but restricted by the code, but that would not be appropriate for the subject matter of a warrant and is not the situation in this case. I am grateful to the hon. Gentleman for the intervention, however, because I need to put my concern on the table, and I invite the Government to take the matter away and have another look at it.
I am concerned that in reality, the broadly drawn warrants will be modified. We will get to the modification procedures later. The broad warrant will be signed off by the Secretary of State and the judicial commissioner, but the modification, which may well add names as they become available, will not. There is therefore the further hidden danger that the provision is so broad that it will require modification procedures to be used more often than they should, in circumstances in which they are not adequate, for reasons that I will come on to.
At the end of the day, if someone with the authority and experience of Lord Judge, Sir Stanley Burnton and David Anderson—who have more authority and experience than anyone in this room—says that they have concerns about the breadth of the warrants, for the Government simply to say, “We’re not going to have another look at it”, runs counter to the spirit in which they have so far approached the scrutiny of the Bill.
Lucy Frazer
I wonder whether clause 15(1) is as wide as we think, given that subsection (2) seems to relate to a category of people that is not caught by subsection (1). We would not need subsection (2) unless it referred to a wider group than subsection (1). If that is right, someone must have particular characteristics to be caught under subsection (2), which suggests that subsection (1) is in fact narrow.
Keir Starmer
That is absolutely right. If subsection (1) was wide enough to incorporate subsection (2) we would not need it. Subsection (2) is there to enable a warrant to be granted in circumstances that would be constrained by subsection (1). It is permissive—that is why the word “may” is used.
It is subsection (2) that has been singled out. Sir Stanley Burnton was absolutely clear that the wording of the subsection was wide, and that was what he focused his attention on. If someone with the experience of the experts I have named says that there is a problem because the provision is too broad, I invite the Government, in the spirit of constructing a better Bill, to go away and think about that. Those people have unrivalled experience of seeing warrants in practice.
Mr Hayes
I do not want to detain the Committee too long on these amendments, but this is an important debate, because investigation of the kind we are discussing may not at the outset be able to identify particular individuals. The effect of the amendments would be to limit the ability of warrant requesting agencies to apply for a warrant against organisations, and to require the naming of individuals. It is not always possible to do that. That includes individuals using communication devices—it may be known that someone has received a telephone call from a particular number, but not necessarily know who or where they are.
Victoria Atkins
Would a horribly pertinent example be the man in the hat in Belgium? Until this week the security services abroad did not know who that person was and were desperately trying to find out his identity.
Mr Hayes
That is an example of what I meant. There could well be people, either here or travelling here, whose identity is known only in the broadest terms. They are part of a network, a wider group or organisation, but no detail is known about them. That does not apply only to terrorist investigations; it might apply to serious organised crime investigations, in which by their nature we are dealing with organisations that desire anonymity. That means that investigations are challenging and makes the powers in the Bill absolutely necessary.
It is perfectly possible that a terrorist or criminal organisation might be seeking to travel in or out of the United Kingdom. It might not be clear at the outset which individuals will be travelling, or that all those travelling share an identified common purpose and will be carrying on the same activity, as required by the definition of “group of persons”.
It is also important to note that the Bill imposes strict limits on the scope of the warrant in relation to organisations. We need to be clear that activity against an organisation must be for the purpose of a single investigation or operation, and the Secretary of State and judicial commissioner will both need to be satisfied that the warrant is sufficiently limited to be able to meet the necessity and proportionality case. It is not just that it needs to be necessary and proportionate; it must be sufficiently limited to legitimise that.
Joanna Cherry
I am thinking about the example of the man in the hat. Is that really apposite here? We are talking about targeted interception warrants and targeted examination warrants. We cannot intercept someone’s communications, or examine them, before we have identified who or where they are. Simply knowing that there is a man in a hat is of absolutely no use to us until we find some way to narrow it down and identify who the man in the hat is, even if just that he is a man living in a particular place.
Mr Hayes
The hon. and learned Lady may have misunderstood. Part 2 targeted warrants, even if they are thematic, cannot be used to trawl information collected en masse or in bulk. Targeted interception warrant applications must specify the scope of the activity to be intercepted. They cannot be open-ended; they are time-limited and must provide sufficient information for the Secretary of State to assess that the activity proposed is necessary. Indeed, all targeted interception warrants will be time-limited to six months.
Where the interception of calls between a particular handset and a group of individuals, for example, may help to identify a kidnapper—we have heard the example of kidnapping—or show where a kidnapper is, the details of what they are planning or where they might be holding the victim, it is of course possible to identify individuals to whom the warrant relates at the point when it is sought. Where that is the case, the warrant requesting agency will be expected to add the identities of the suspects to the warrant as they become known. That is a further assurance and an important new safeguard, as the hon. and learned Member for Holborn and St Pancras knows. It will allow the Secretary of State and the judicial commissioner to oversee the conduct taking place under the warrant. That obligation will be given statutory force through the code of practice, as he said. Even though it will be in the code of practice, it will have statutory force.
Keir Starmer
Will the Minister confirm, just so we are clear what we are talking about, that that process, as envisaged in the code, is by way of modification and does not involve the double lock?
Mr Hayes
That is an interesting point. I will take further advice on that in the course of my peroration, which will be marginally longer than it was going to be as a result.
Because we recognise that it is important that these warrants are not open-ended, we have added that important safeguard. The fact that it is in the code of practice and not on the face of the Bill does not weaken its significance. I emphasise that it must have force and will be an obligation, as I have described it.
I will come back to the hon. and learned Gentleman’s point, but first I will deal with amendments 8 and 9, which would remove the warrant requesting agency’s ability to apply for a warrant for testing or training purposes. It is vital that those authorised to undertake interception are able to test new equipment and ensure that those responsible for using it are properly trained in its use. There are, however, strict controls that govern the handling of material obtained during such tests. We believe that it is right that it should be possible for equipment to be tested in scenarios where it can be checked that it is working properly, for example by armed forces on the battlefield. It would have serious consequences for our military if they did not have the ability to test equipment so that risks and mistakes are avoided.
Victoria Atkins
Returning to the point made by the hon. and learned Member for Edinburgh South West about the man in the hat, the reason for the ability to investigate communication devices and numbers to which names may not be attributed is precisely so such a person can be identified through devices seized from suspects who have already been arrested. Is my understanding correct on that? The hon. and learned Lady accused me of misunderstanding, but may I invite the Minister to clarify?
Mr Hayes
My hon. Friend is right, and I can enlighten the Committee by saying that I have seen this in practice. At the National Crime Agency I saw an investigation live, because it happened that while I was visiting, just such a warrant was being used. The identity of a number of those involved in a very serious potential crime was not known, and a warrant was used to piece together information from what was known to prevent an assassination. I will say no more than that for the sake of the necessary confidentiality, but that capability was needed to avert a very serious crime. That warrant was highly effective, and if I needed any persuading, it persuaded me then of the significance of the power we are discussing.
To return to the point made by the hon. and learned Member for Holborn and St Pancras, thematic warrants can be modified by adding people, as I think he was suggesting, but only where it is in the scope of the original activity authorised by the warrant and the purpose does not change. It must be for the purpose that the warrant requesting agency gave without the double lock; he is right about that. However, the Secretary of State must be notified when a person is added, so there is a further check in terms of that notification. Modifications are not permitted to change the scope of the warrant. The provision is not open ended—I do not think the hon. and learned Gentleman was suggesting that it was, but he might have been interpreted as doing so.
Keir Starmer
We can probably pick up this baton when we get to clause 30, but I think the provision that the Minister has just mentioned comes from the code, rather than the Bill.
Mr Hayes
That is true, it is in the code. I think I indicated that earlier. None the less, it is an obligation. The reason we added to the codes, largely following the Joint Committee report, was that we wanted to provide additional assurances without the rigidity of placing too much on the face of the Bill.
There is always a tension—I spoke about it in our morning session—between how much is placed on the face of a Bill, which of course provides a degree of certainty but by its nature simultaneously provides rigidity, and how much is placed in supporting documentation. Codes of practice are important supplements to a Bill, and, in their final form, to an Act. It should be emphasised that they are not merely advisory documents—they are legally binding in their effect. As I also emphasised, these are draft codes of practice that we expect to publish in full, partly as a result of this Committee’s consideration and what we learn from it.
The warrant application process will allow the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of testing or training, and to approve the measures to be taken to reduce the chance of communication being accidentally intercepted. Clear safeguards are in place to protect the privacy of the citizen, so I invite the hon. and learned Member for Edinburgh South West to withdraw the amendment.
Joanna Cherry
I am not minded to withdraw the amendment. For the same reasons that the hon. and learned Member for Holborn and St Pancras gave earlier, and the reasons that I gave in relation to amendments to clause 13, I will not insist on a vote just now—I suppose that means that I do withdraw the amendment, but I reserve the right to bring it back at a later stage.
The Chair
For clarification, when the hon. Lady says that she will bring it back at a later stage, it will be on Report.
Joanna Cherry
Indeed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
Clause 17
Power of Secretary of State to issue warrants
Keir Starmer
I beg to move amendment 11, in clause 17, page 13, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.
This amendment, and others to Clause 17, seeks to remove the role of the Secretary of State in formally issuing interception warrants and instead requires Judicial Commissioners to issue such warrants.
The Chair
With this it will be convenient to discuss the following:
Amendment 12, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 13, in clause 17, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 14, in clause 17, page 13, line 12, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 15, in clause 17, page 13, line 16, leave out paragraph (1)(d).
Amendment 16, in clause 17, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 17, in clause 17, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 18, in clause 17, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 19, in clause 17, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 20, in clause 17, page 13, line 31, leave out paragraph (2)(d).
Amendment 21, in clause 17, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 22, in clause 17, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 23, in clause 17, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”
Amendment 24, in clause 17, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 25, in clause 17, page 13, line 45, leave out paragraph (3)(d).
Amendment 26, in clause 17, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 27, in clause 17, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 101, in clause 17, page 14, line 11, leave out “For the power of the Scottish Ministers to issue warrants under this Chapter, see section 19.”
This amendment reflects the removal of the role of the Scottish Ministers in formally issuing interception warrants sought by Amendment 36 (which proposes leaving out section 19).
Amendment 28, in clause 17, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 33, in clause 18, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 34, in clause 18, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.
Keir Starmer
To some extent the amendments overlap with the discussions we will no doubt have on clause 21 and new clause 5. The effect of this group of amendments is to replace the Secretary of State with the judicial commissioner as the primary and only decision-maker in relation to these categories of warrants.
This morning, the Minister said that he was surprised that we had tabled these amendments and I will give him three short answers to that. The first is that from the outset the Labour party called for judicial authorisation before the concept of the double lock was introduced. That was our primary and preferred position. Obviously, the introduction of the double lock, which involves a degree of judicial authorisation, is somewhat better than the Secretary of State being the sole determining decision-maker. Therefore the fact that we are supportive of a situation that is better than the current situation is hardly enough to knock us out from our primary position. The third position—and this is why it overlaps with clause 21—is that to some extent this all depends on what role the judges have. If they are nearer to decision-makers under clause 21, the relationship with the Secretary of State is very different from the position if they are simply long-arm reviewers. I will reserve that for the discussion we will have on clause 21.
So far as the principle in favour of these amendments is concerned, I can be clear. They have been drafted to reflect, as far as possible, the detailed proposals of David Anderson in his report. Members of the Committee have probably seen that they are deliberately drafted to reflect the approach that he suggested was right—particularly when one takes into account new clause 5. I will summarise his reasons, rather than reading them verbatim, laid out in paragraphs 14.47 and 14.57 of his report. He indicates four reasons for the proposed structure. The first is the sheer number of warrants that the Home Secretary has to sign per year. As he sets out in paragraph 14.49, there are thousands of warrants per year, details of which are in the footnotes. Dealing with those warrants is a huge imposition on the Secretary of State’s time, and they could be dealt with in a different way.
There is an important sub-issue here. Points have been made, this morning and on other occasions, about the accountability of the Secretary of State in relation to national security and foreign affairs. I understand how and why those points were made. As David Anderson points out, 70% of the warrants that the Secretary of State routinely signs off are in fact police warrants that do not raise issues of national security or matters of foreign affairs. In many respects, they are no different from the sorts of powers that the police exercise when they search and seize, or exercise other powers available to them through the usual routes of going to the Crown court. His starting point is that it is no longer sensible for the Secretary of State to handle these thousands of cases, particularly since 70% are in fact police cases, not involving national security or foreign affairs.
Secondly, in paragraph 14.50 David Anderson deals with improving public confidence. Thirdly, at 14.51 he deals with the position in the US, where there is a growing insistence that if warrants are to be complied with by those in the US, judicial sign-off of the warrant is required. David Anderson’s concern was that, unless we move to a different system, we might find that warrants would not be honoured when we needed them to be honoured in other jurisdictions. That is obviously a serious point that I know the Government have taken into account.
The fourth reason, in paragraph 14.52, is that there is an established and well-functioning system for judicial approval by commissioners in comparably intrusive measures, when applied for by the police. He lists them as property interference, intrusive surveillance and long-term undercover police operations. Other police activities that require to be warranted go straight to the commissioner, not via the Secretary of State. Since 70% of those cases are the police exercising not dissimilar powers of interception under warrant, there is a powerful argument to say that that category of cases, if nothing else, ought to go straight to a judicial commissioner. That would be modelled on David Anderson’s analysis, for the reasons that he has set out in those paragraphs.
I would like to highlight paragraph 14.56(a), because it has been said today and on other occasions that an important political accountability goes with the role of Secretary of State in relation to these warrants. Yes, that is the case to a certain level, but it must not be misunderstood. I have yet to find an example of any Secretary of State from any political party, certainly in recent history, ever accounting to Parliament for an individual warrant.
Victoria Atkins
What I genuinely do not understand about this argument is that, given that the Secretary of State is not permitted or authorised to account publicly for a warrant, how on earth will that be any different for a judicial commissioner? The nature of the material is sensitive, regardless of whether it is reviewed by the Secretary of State or by the judicial commissioner.
Keir Starmer
The point I am making is not that that judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.
The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.
Suella Fernandes
On the question of accountability, there is a clear line of accountability to the Executive in the form of the Intelligence and Security Committee. It is a body of reviewers—elected, accountable and within the parliamentary and democratic process—who have access to this confidential information and can review the actions under this function. That is a clear line of accountability, which exists and is exercised.
Keir Starmer
Again—and I will be corrected if I am wrong on this—the statutory prohibition on the Secretary of State ever saying whether or not she signed a warrant applies across the board, whether in a Select Committee or in any other parliamentary proceedings. In other words, first, she could not be asked a question about an individual warrant because there would be no basis on which it could be put and, secondly, even if it were asked she could not answer it. I take the point that is being made but, wherever the accountability is placed, to hold the idea that there is individual accountability for the hugely important decisions that are made on individual warrants is to misunderstand how the regime works.
Lucy Frazer
One witness—I forget now who it was, but I think they were on the legal panel—said that there is accountability both ways. If the Secretary of State gets it right and there is no terrorist attack, there is nothing to be accountable for. If she gets it wrong, she is extremely accountable for the consequences of something that happened when she made the wrong judgment call about whether to issue a warrant.
Keir Starmer
I recall that evidence, but it is very difficult to see how that could work in practice, because none of us would ever know—nor could we know—whether a warrant had been put before the Secretary of State and whether she had signed it. That is prohibited for us and for the other oversight mechanisms. That is the problem. I accept the broader political accountability—if something goes horrendously wrong, one would expect the Home Secretary to make a statement about what the Government had been doing. However, the idea that on an individual, warrant by warrant basis there could be anything amounting to accountability is what David Anderson was driving at in his report, and it has never happened. That is the best evidence.
Mr Hayes
The hon. and learned Gentleman is so wrong about this that I have an embarrassment of riches on which to draw. He is philosophically, politically and factually wrong, but let me deal first with his factual inaccuracy. The Home Secretary can talk about specific warrants to the ISC. The ISC does conduct detailed investigations into particular cases, as it did into the murder of Lee Rigby, when it scrutinises data in considerable detail. Of course all of that cannot be made public, because of the nature of the investigation, but the hon. and learned Gentleman misunderstands—perhaps because of inexperience—the role of the ISC in those terms. I will deal with his philosophical and political problems later.
Keir Starmer
Perhaps the Minister will point me to an example of the ISC ever making public any criticism of or comment about the Secretary of State’s exercise of the powers in a way that could in any way be described seriously as politically accountable.
Mr Hayes
With respect to the hon. and learned Gentleman, he can hardly claim that the ISC is a puppet or poodle of Government given its report on the Bill. The ISC is extremely robust in its scrutiny of Ministers. It makes its views known to Ministers and is not frightened to make known to the House its views about the proposals, policies and performance of Government.
Keir Starmer
I do not think that the Minister was listening to what I said. I asked if he could point me to a single example of the Intelligence and Security Committee ever commenting publicly—in a way that could be accountable to the public—on the exercise by the Secretary of State of her powers to issue a warrant. It is all very well making generalised points, but I am asking for yes or no—the Minister must know.
Mr Hayes
The hon. and learned Gentleman said that the ISC could not ask the Secretary of State about particular warrants, but the ISC can and does ask the Secretary of State about particular warrants in pursuit of its inquiries into specific cases. Of course, because of the character of the ISC, rather like the practice of Ministers, it cannot make all that information publicly available. The whole point about the ISC is that it does not make all that it considers publicly available, but that does not mean that Ministers are not accountable to the Committee, which is made up of Members of this House from many political parties.
Keir Starmer
The answer to my question appears to be no, there has never been an example of the ISC or any Committee ever commenting publicly on the exercise by the Secretary of State of her specific powers to issue warrants or not. That is what leads David Anderson to the view that the political accountability card is overplayed in the discussion.
The Solicitor General (Robert Buckland)
This is a very important aspect of the debate. On the last remark made by the hon. and learned Gentleman, about David Anderson’s potential conclusion about political accountability being overplayed, I was interested in the arguments, but the fundamental point is the source of the authority that allows the Secretary of State as a democratically elected politician to make the decisions. Also, in particular in the context of national security, it is well set out in case law, as the hon. and learned Gentleman knows, that proper deference should be paid to the Executive on important decisions of national security. That is at the top end of the scale, then we move down—or across, in a different context—and is that not the issue?
Keir Starmer
I have already accepted the general proposition that if some catastrophe occurred, the Secretary of State would be required or expected to make a statement, setting out what in general terms had been done. I accept that level of political accountability. I am talking about the specifics of signing off warrants and, therefore, what would be lost if the Secretary of State’s role were taken over by the judicial commissioner. There is a question of deference on national security and foreign affairs, but we will get to that when we reach clause 21, because that deals with the scope of review by the judicial commissioner. The point I was making before the interventions, however, was drawing attention to David Anderson’s paragraph 14.5, in which he sets out the reasons why the political accountability card is overplayed.
Victoria Atkins
The hon. and learned Gentleman may recall that we had the privilege of listening to two Labour Home Secretaries, Lord Reid and Charles Clarke. I asked Mr Clarke about his relationship with the security services and his experience of warrantry in the dreadful hours following the 7/7 bombings. I asked him how useful or important that was in the vital hours thereafter and his answer—I will be quick, Mr Owen—started with the words “critically important”. Does that affect the hon. and learned Gentleman’s view in any way?
Keir Starmer
No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.
I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.
Joanna Cherry
I just want to address the joint amendments briefly. I want to draw attention to amendment 101, which was tabled on behalf of the Scottish National party and reflects a later amendment to delete clause 19. Scottish Ministers issue warrants at present in relation to serious crime. If the amendments were taken on board, their role would be replaced by judicial commissioners, and they are comfortable with that. I simply draw attention to that consequential amendment.
I support everything that the hon. and learned Member for Holborn and St Pancras has said in support of the group of amendments to clause 17. I have just three points to make: three reasons why I support the amendments. First, I associate myself with the argument that arguments concerning Ministers’ democratic or political accountability for surveillance warrants are misconceived and misplaced. Secondly, one-stage judicial authorisation is the norm in many comparable jurisdictions. Thirdly, and picking up another point made by David Anderson, judicial authorisation would encourage co-operation from technical firms in the United States of America.
I am grateful to the hon. and learned Member for Holborn and St Pancras for exploding the myth, also exploded by David Anderson, that Ministers are democratically accountable for their role in issuing warrants, because of course it is a criminal offence to disclose the existence of a warrant, and that will remain the case under clauses 49 and 51.
What is often advanced and has been advanced by Government Members is that a corollary to this argument is that Ministers are politically accountable for the agencies and will be required to resign if things go wrong. That is incorrect. Although the Home Secretary is responsible for setting the strategic direction of the Government’s counter-terrorism policy and the Cabinet Minister is responsible for MI5, MI5 is like the police: operationally independent. MI5’s director general retains operational independence for day to day decision making. Historically, when terrorist attacks have tragically succeeded, they have not led to political resignations in this country. Despite inquests and inquiries following the terrible tragedies of the 7/7 attacks and the ghastly murder of Fusilier Lee Rigby, and despite the fact that those inquests and inquiries uncovered internal errors in the agency’s handling of information relating to those responsible for the attacks, this did not result in the political accountability that is now so strongly claimed.
The reality is that the oversight we have for such decisions and the accountability for the agency is provided by a patchwork of mechanisms, including the ISC—although I dissociate myself with the comments made by the hon. and learned Member for Holborn and St Pancras on the limitations of the ISC—and also by public inquiries and legal challenges brought against the Government. No doubt we could argue that such oversight and accountability as there is in relation to the operation of the security agencies could be enhanced, but it is simply not correct to argue that political accountability is provided by the ministerial sign-off on warrants, because it is not. I have been in the House for only nine months, but when questions around these issues are asked of Ministers, I have seen them repeatedly reply, probably quite properly, that they cannot answer for reasons of national security.
My second point is that one-stage judicial authorisation is the norm in comparable jurisdictions. It happens in America, where federal, investigative or law enforcement officers are generally required to obtain judicial authorisation for intercept. A court order must be issued by a judge of a US district court or a US court of appeals judge. In Australia, law enforcement interception warrants must be issued by an eligible judge or a nominated administrative appeals tribunal judge. In Canada, it is unlawful to intercept private communications unless the interception is in accordance with an authorisation issued by a judge. In New Zealand, police can only intercept a private communication in tightly prescribed circumstances, including requiring a warrant or emergency permit that can only be issued by a High Court judge. If the United Kingdom wants to be able to claim that it is in a world-class league for good practice in surveillance, in my submission, it should adopt one-stage judicial authorisation.
Those of us who are lawyers in the Committee or have ever dealt with the law are familiar with the concept of a judge being got out of his or her bed in the middle of the night to grant an interdict in Scotland or an injunction in England, in civil matters of far less importance than the sorts of matter the Bill deals with. In the aftermath of—God forbid—another attack in the United Kingdom such as 7/7, judges would be as readily available to deal with warrants as Ministers of the Crown are at present.
Thirdly, judicial authorisation would encourage co-operation from US technical firms. That point was pressed home by David Anderson QC in his review, when he said that given the United States tradition of judicial warrants, Silicon Valley technical firms feel uncomfortable with the United Kingdom model of political authorisation. Those firms operate in a global marketplace, which underlines the need for us to adhere to procedures fit for a world-leading democracy. The United Kingdom is alone among our democratic allies with similar legal systems in permitting political-only authorisation. The SNP supports the amendments for those three reasons.
Mr Hayes
This is an important debate, as my hon. and learned Friend the Solicitor General said. The shadow Minister is wrong, as I described earlier, factually, philosophically and politically. I will try to deal with those in turn.
The factual case is this. Accountability is a much more sophisticated thing than the shadow Minister suggests. Accountability is about who makes decisions, as well as about the decisions they make. People who are elected, by their nature, are accountable to those who elect them. The judgments they make and the powers they exercise reflect that direct relationship with the electorate. It is almost undeniably true that those of us sitting in this room and others like us are bound to be more influenced and affected by the wider public because we do not do a job unless they continue to have faith and belief in us. We are elected by them; we are answerable to them.
The Home Secretaries, the Northern Ireland Secretaries and the Foreign Secretaries who make these decisions are elected constituency Members of Parliament who every day, every week and every month are communicating with constituents who have profoundly held views about the very matters over which those Secretaries exercise their judgment, in a way that people who are not elected simply do not. That line of accountability to the wider public should not be understated or underestimated.
Keir Starmer
How would a member of the public ever know, and therefore be able to judge, whether a Secretary of State had made a mistake in relation to a specific warrant?
Mr Hayes
I am prepared to acknowledge that I may not have made the argument sufficiently clearly, rather than to suggest that the hon. and learned Gentleman did not understand it. I was making the point that those who are missioned to make the decisions are likely to be more in touch with the sentiments, values, views and opinions of the public than those who are not elected, because of who they are and the job they do. That is not a particularly difficult concept to grasp, so I am amazed that he does not grasp it.
Keir Starmer
Perhaps the Minister can point me to the provision in the Bill that permits or requires the Secretary of State to take into account the wider public’s views. There are strict legal tests of necessity and proportionality, and the idea that judges could not apply them to specified organisational purposes and so on is to underplay their duty. I have done loads of control order cases and TPIM cases in front of judges and they make such decisions day in, day out.
Mr Hayes
Here is the nub of the difference between us. The hon. and learned Gentleman is a former lawyer who has happily now become a politician. I am a politician who has never had the disadvantage of being a lawyer. Luckily, I have many hon. Friends in the room who are able to supplement my skills in that regard. My fundamental point is that as a constituency Member of Parliament, with all the communications, contacts and understanding that that necessitates in respect of popular opinion—I reapply for my job, as he will, every five years—I am likely to be more in tune and in touch with popular sentiment when exercising all kinds of judgments, including judgments about the Bill, than someone who is not. That is not a particularly controversial view. It is an affirmation of the importance of representative democracy, and we are, after all, Members of a representative democratic forum.
Christian Matheson
Does the Minister understand the point my hon. and learned Friend the Member for Holborn and St Pancras is making about how a balance must be struck between being in touch with popular sentiment—the Minister made that case well—and being correct in terms of legal procedures?
Simon Hoare
I thought my right hon. Friend was about to give a tinker’s cuss, but obviously he refrained from doing so. I think he will agree that the main difference between the two Front Benches is the point made by the hon. Member for City of Chester in an earlier intervention. If the first duty of Government is the protection of the realm and Government can send troops on to our streets and into foreign battlefields and so on, suddenly passing any responsibility for or involvement in the granting of these warrants off to unaccountable judges would be an abdication.
Mr Hayes
I do take that view. The hon. Member for City of Chester did not explicitly articulate, but implied that there needed to be a balance between refusing to abdicate that duty, and indeed affirming it, alongside the affirmation of representative Government that I have already made, and taking into account the significance—as the hon. and learned Member for Holborn and St Pancras argued, David Anderson made this point clearly in his report—of judicial involvement, not least as a means of reinforcing the system. As he very honestly said, part of David Anderson’s consideration was whether we could make what we do stand up to challenge, and having a judicial involvement through the double lock is a way of creating a system that is more robust and resistant to challenge: a system that people can have greater faith in, in that respect.
Christian Matheson
I am most grateful to the Minister for his generosity in giving way again. Having grown up in a village in rural Cheshire, I probably am quite bourgeois and certainly quite liberal, but I am finding the arguments of Government Members somewhat absurd, in that they seem to have a lack of trust in the judiciary to implement the law and understand what was meant from the original drafting of a law. I think my hon. and learned Friend the Member for Holborn and St Pancras was trying to convey the sense that the balance was not quite there.
Mr Hayes
No, the double lock will provide the judicial commissioner with the same information—the same explanation of need—as that offered to the Secretary of State: the Home Secretary, the Foreign Secretary, the Northern Ireland Secretary. What is more, they will apply the same test of proportionality and necessity, for it is indeed just that: a double lock. Unless both the judicial commissioner and the Home Secretary approve the application for the warrant, it will not happen. It is true that any party can ask for further information and the re-presentation of the warrant, and that may occur if there is uncertainty about the case that has been made, but the double lock has real effect. It is not that we do not believe in the judicial side of this deal; it has equal weight to the political involvement, but it is important that the Executive retain a role in this.
Let us be clear, the effect of these amendments will be to take the Executive out altogether—a substantial change in the Labour position. I suspected, unhappily, that the hon. and learned Member for Holborn and St Pancras might be a bourgeois liberal; I did not know he was going to be a born-again Bolshevik.
Keir Starmer
I am not sure I appreciate the tone with which the Minister is now conducting the debate, to be perfectly honest. To some extent, his comments have lost sight of the point I was making and that David Anderson made. The Minister invokes defence of the realm and national security, and so on, and has forgotten that 70% of these interception warrants are warrants for the police to exercise their powers—not particularly different to a lot of the other powers they exercise. They get search and seizure, they go into people’s houses, they get their letters and they read them, so there is nothing special about content in an intercept to say, “It must be the Secretary of State: only she is in touch with real people.” The police can get a warrant from a judge; they do so every day of the week. They go into people’s houses, they get all their documents and they read the lot, so the idea that that is a function that cannot be exercised unless someone is democratically elected is very hard to sustain.
The Chair
Before the Minister continues, let me say that the shadow Minister will have an opportunity to respond.
Mr Hayes
I just say to the shadow Minister that he may not appreciate the tone, but I could be much tougher. The reason I could be much tougher is because these amendments—which I take great exception to, by the way—stand in direct contrast to the tone of the shadow Home Secretary’s remarks when the draft Bill was published, when he welcomed the idea of a double lock. Speaking of the Home Secretary, he said:
“She has brought forward much stronger safeguards, particularly in the crucial area of judicial authorisation. It would help the future conduct of this important public debate if the House sent out the unified message today that this is neither a snooper’s charter, nor a plan for mass surveillance.”—[Official Report, 4 November 2015; Vol. 601, c. 973.]
That warm welcome of the double lock was affirmed several times since. It then metamorphosed into an equal lock, as the hon. and learned Member for Holborn and St Pancras and others said that the information provided to the judicial commissioner should be equivalent to that provided to the Home Secretary, and I can even understand the argument that the process might be simultaneous. I do not necessarily agree with it, but I at least understood it, though our case was that the matter should go first to the Home Secretary and then to the judicial commissioner. I thought it might be the Opposition’s settled position that they wanted simultaneous consideration, but these amendments take the Home Secretary out of the process altogether. I can only assume that this change of heart—this about-turn—is not to the hon. and learned Gentleman’s taste, because I know that he is a very sensible chap and I cannot believe that he really believes that the Executive should be removed from the process altogether. Either there has been a command from on high—thus, my point about Bolsheviks—or, I hope, these are merely probing amendments that seek to reach one of the earlier positions I thought he might take.
Lucy Frazer
The hon. and learned Member for Edinburgh South West mentioned in her opening speech and on this point the importance of international comparison. Did the Minister notice that she did not refer to paragraphs 8.46 to 8.48 of David Anderson’s report, in which he extensively analyses the comparative jurisdictions?
Mr Hayes
For the sake of brevity and to make sure I do not fall out in the future, I am going to say that, yes, I did notice it.
The shadow Home Secretary, speaking of the Home Secretary, went on to say:
“The two-stage process that she advocates seems to have the merits of both arguments: it will provide public and political accountability, and the independence that is needed to build trust in the system.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]
That is exactly the same point that I made to the hon. Member for City of Chester: it has, in the words of the shadow Home Secretary, the “merits of both arguments”.
Perhaps the shadow Minister will forgive me if I sound a little more arch than I normally do, but I feel that this is such a surprising set of amendments, which is so out of keeping with what I hoped was emerging as a settled position on the balance between the Executive and the judiciary. I thought we would end up with a debate on this, but not one between two positions—our measured, compromise position, and a much more extreme position that I did not expect the official Opposition to adopt. I urge him to think about this again, because I think we reached a good settlement in the terms that I described. That is my political point.
Returning to my original point for a moment, given the evidence provided by the former Home Secretaries, John Reid and David Blunkett, and the former Northern Ireland Secretary, my right hon. Friend the Member for North Shropshire (Mr Paterson), I think the balance of opinion lies on our side of the argument. I note the Joint Committee’s report and the fact that the ISC was silent on this issue in its most recent report. I feel that the balance of the argument lies with the proposals in the Bill. Perhaps we can look at the detail—I am happy to do that. Perhaps, in the spirit of trying to make positive progress, we can look at the information is provided to each party under the double-lock or at how the timing works—I do not know. I am not going to make any commitments on that, but I am more than happy to have a measured and reasonable debate about this. However, to take the Executive out of the process is politically very unwise, if I might say so, of the Opposition, and it is certainly not acceptable to the Government.
On the philosophical point, the shadow Minister understands—he is an educated and interesting man—that this strikes at the very heart of the separation of powers. My right hon. Friend the Member for North Shropshire said in evidence that
“these are executive decisions. They are operational decisions and must be made by a democratically elected Minister, accountable to Members of Parliament.”
He did not want the judiciary involved at all. We did not take that route because we listened to David Anderson and others, but I take the former Minister’s point.
Finally, so that we do not have any factual inaccuracies, the ISC made a clear recommendation on warranting in the Lee Rigby report that I mentioned earlier. The ISC does comment on warranting, contrary to what the shadow Minister says. It can both interrogate the Home Secretary on specific warrants and comment on warrants in respect of a particular investigation or inquiry. There is a line of accountability, as well as one to the wider public in the general terms that I described, to a well respected Committee of this House, which was established for exactly that purpose. On that basis, and having heard the argument, I urge Opposition Members to think again about these amendments.
Keir Starmer
In the exchanges we have had, I have probably said all I needed to in response to the Minister’s points. David Anderson might be surprised to find out that he is associated with the Bolshevik opposition apparently represented in the amendments. The amendments represent and reflect his thinking, but that is as may be—I will not press the amendments to a vote. I beg to ask leave to withdraw the amendment.
Joanna Cherry
On a point of order, Mr Owen, the amendments are also in my name, so will I, too, have to state my position on them?
Joanna Cherry
I would like to respond to one or two of the points made by the Minister, if I may briefly.
The Chair
There is a bit of a job share going on among the Front Benchers and I am getting a little confused. The mover of an Opposition amendment is the person who finishes on behalf of the Opposition. Mr Starmer has had the opportunity to do that and you have had your opportunity to speak; we are now going to vote.
Joanna Cherry
I hear what you are saying, Mr Owen. My position is that the amendments are crucial to the Bill. I am not insisting or objecting—
The Chair
Order. The Question is that the Committee agrees to withdraw the lead amendment. If you do not wish that to happen, you may object and we will proceed to a vote.
Keir Starmer
I beg to move amendment 61, in clause 17, page 14, line 1, leave out subsection (4) and insert—
“(4) No warrant issued under this Part will be proportionate if the information sought could reasonably be obtained by other less intrusive means”.
The Chair
With this it will be convenient to discuss amendment 93, in clause 27, page 21, line 6, at end insert—
“(2A) A warrant issued under this Chapter must state the specific purpose that is to be achieved by the warrant.
(2B) A warrant issued under this Chapter must outline the options for obtaining the relevant data and confirm that other less intrusive options have been tried but failed or have not been tried because they were bound to fail and the reasons why.”
This amendment, and others to Clause 27, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided (in similar vein to the amendments to Clause 15).
Keir Starmer
I mentioned amendment 61 this morning. The interception of communications draft code of practice—at paragraph 4.7, as I indicated this morning—states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”
That is a clear and correct statement of principle.
Subsection (4), as drafted, is not so clear. It simply suggests that, if the information can reasonably be obtained by other, less intrusive means, that is a factor to be taken into account, but is not decisive, as set out in the draft code of practice. In our view, the Government cannot have it both ways: if the code is right, it should be elevated and put on the face of the Bill. That is what the amendment seeks to achieve, replacing subsection (4) and replacing it with what is, in essence, paragraph 4.7 of the draft code of practice, which in our view is the right way to articulate necessity in such circumstances.
The Chair
If you wish to speak to any amendment, you may make your position clear at that time, even if you are not the mover of the amendment—
Joanna Cherry
My name is not on amendment 61, but is on amendment 93, but that is an amendment to clause 27.
The Solicitor General
It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.
May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.
Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.
We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.
I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.
Suella Fernandes
I echo everything that the Solicitor General says. Is not the amendment trite, in that it is clear for any practitioner, judge or decision maker that the question in the amendment—whether the information sought could reasonably be obtained by other less intrusive means—is part and parcel of, and essential to, the proportionality test?
The Solicitor General
My hon. Friend makes a powerful point. There is a danger when dealing with primary legislation of gilding the lily. I mean that in the spirit of co-operation that I know we have managed to engender in these debates, in the main. For those reasons, I respectfully ask the hon. and learned Gentleman to withdraw his amendment.
Keir Starmer
I am grateful to the Solicitor General for the way he has approached this, but it misunderstands the amendment. Of course, whether information could be reasonably obtained by other means is relevant to the assessment of proportionality and necessity. The amendment proposes that, having taken all the factors into account, if it transpires at the end of that exercise that the information could have been reasonably obtained by other less intrusive means, it is not proportionate—that is the end of the exercise. That, in our submission, is the right test that should be on the face of the Bill. At this stage, I will withdraw the amendment with a view to raising it at a later stage if it is appropriate to do so. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clause 18
Grounds on which warrants may be issued by Secretary of State
Joanna Cherry
I beg to move amendment 30, in clause 18, page 14, line 20, after “security”, insert “or”.
The Chair
With this it will be convenient to discuss the following:
Amendment 85, in clause 18, page 14, line 20, after “security” insert—
“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”
This amendment, and others to Clause 18, seeks to require that the grounds for an interception or examination warrant are tied to a threshold of reasonable suspicion of criminal behaviour; and that reference to a separate ground of “economic well-being, etc.” is deleted from the face of the bill.
Amendment 86, in clause 18, page 14, line 21, after “crime” insert—
“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”
Amendment 31, in clause 18, page 14, line 21, leave out “or”.
Amendment 32, in clause 18, page 14, line 22, leave out paragraph (2)(c).
Amendment 35, in clause 18, page 14, line 33, leave out subsection (4).
Joanna Cherry
These amendments would delete the separate ground for interception of economic wellbeing from the face of the Bill and require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour.
The Bill re-legislates for RIPA’s three broad statutory grounds for issuing surveillance warrants. The Secretary of State may issue warrants for interception, hacking and so on
“in the interests of national security…for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
That final ground can apply only where it relates to the acts or intentions of persons outside the British islands.
I support the amendments because all three main statutory grounds are, in my submission, unnecessarily vague and are left dangerously undefined. As the decision will continue to lie with the Secretary of State, the test will be met by whatever he or she subjectively decides is in the interests of the national security or economic wellbeing of the UK, having regard to popular sentiment rather than to what is necessary and proportionate, as we have now heard from the Minister’s own mouth. The tests mean that individuals are not able to foresee when surveillance powers might be used, and they grant the Secretary of State a discretion that is so broad as to be arbitrary. The Joint Committee on the draft Bill recommended that the Bill should include a definition of national security, and I call upon the Government to produce such an amendment. If the Government sprinkle the Bill so liberally with the phrase “national security”—indeed, it is the Government’s job to defend national security—they need to tell us what they mean by that phrase, so I call upon them to define it.
The Joint Committee also recommended that the phrase “economic wellbeing” should be defined, but the ISC went further and said that economic wellbeing should be subsumed within a national security definition, finding it unnecessarily confusing and complicated. I heartily endorse the ISC’s view in that regard. The third ground is an unnecessary repetition unless there is something sinister behind the definition of “economic wellbeing,” and many Members of the official Opposition, and indeed of my own party, have serious concerns about what that might be about.
Recently, the Prime Minister went so far as to say, ridiculously in my view, that the Labour party is now a “threat to national security”. I am not a member of the Labour party, although I once was when I was a student.
Joanna Cherry
I am very happy to join Labour in many aspects of this Bill, but I have taken a slightly more radical path in middle age as an SNP MP. It is a disgrace to suggest that the Labour party is a threat to national security, and such loose language shows us that the continued undefined use of the term “national security” in enabling legislation is not sustainable.
The ISC also queried both the agencies and the Home Office on the economic wellbeing ground, and it reported that neither the agencies nor the Home Office have “provided any sensible explanation.” I hope that we might get a sensible explanation from the Government today, and I wait to hear whether we get one. Regrettably, the recommendations of the ISC and the Joint Committee have been dismissed, and the core purposes for which the extraordinary powers can now be used remain undefined and dangerously flexible within the Bill.
That is the nub of my concerns about the definitions of “national security” and “economic wellbeing.” The SNP amendments go slightly further than the Labour party is prepared to go at this stage by requiring reasonable suspicion. At the moment, the three grounds contain no requirement for reasonable suspicion that an individual has committed or intends to commit a serious criminal offence, nor even suspicion or evidence that a serious crime has been or is going to be committed. In my submission, that gives licence for speculative surveillance.
Briefly, on the national security ground, the courts have in the past responded with considerable deference to Government claims of national security, viewing them not so much as a matter of law but as Executive-led policy judgments. As a legal test, national security is meaningless unless the Government attempt to tell us what they mean by it. The second ground is similarly broad and open-ended because the Government have not sought to clarify the circumstances in which national security, as opposed to the prevention and detection of serious crime, will be in play.
I invite the Government to table an amendment to tell us what they mean by national security, to explain why it is necessary to have a ground revolving purely around economic wellbeing, to explain why they have discounted the recommendations of the Joint Committee and the ISC, and to tell us why there is no requirement for reasonable suspicion in these grounds.
Simon Hoare
In opening, let me address what I detect is the elephant in the Committee Room, as amplified by the amendment as it was. As I made clear in the July 2015 debate on the Anderson report and on Second Reading, I am not a lawyer, so I view the proposal through the narrow prism of the man on the Clapham omnibus, for want of a better phrase: a practical proposal to try to keep my constituents and others as safe as the Government possibly can. I do not view it through the perfectly proper prism of trained legal eyes and I would not be able to do that.
Coming to the breadth point that the hon. and learned Lady who speaks for the SNP has been making, it is clear to me that, from a legal point of view or from a lawyer’s point of view, the narrower, tighter and more prescriptive the language in statute, the better. It narrows, eliminates, eradicates or whatever the opportunity for a wider debate about the interpretation of this or that word, almost like Coolidge, whose immediate response when told that a senator who had always opposed him had died, was: “I wonder what he meant by that.” I think we should be rather careful. I make no apology for viewing this as just an ordinary guy—a father, a husband, a constituent and a Member of Parliament—who believes it is my duty to support any Government of the day who are seeking to keep our country safe.
Joanna Cherry
Does the hon. Gentleman also accept that, as Members of Parliament, we have a duty to protect our constituents’ civil liberties and privacy? Lawyers look for narrow definitions and certainty not for their pleasure, but to protect their clients. The reason why Members of Parliament should look for narrow definitions and certainties is to protect their constituents.
Simon Hoare
Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.
I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.
I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.
We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.
It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.
Christian Matheson
There has been the requisite level of jousting and debate, and sometimes temperatures have risen a little bit, but I have found Ministers at least prepared to justify their arguments and to listen to other arguments. I say that, importantly, because this clause and the amendments are of profound importance to me and to many Opposition Members. I have absolutely no doubt that there are occasions when attacks on the United Kingdom can be carried out on an economic, rather than a military or criminal, basis. Let us consider a hypothetical example of a country that is adept at undertaking cybercrime against the London stock exchange to manipulate stock market activity or shares, or to bring the stock exchange down. That, of course, would have a serious effect on the operation of the City of London. I accept that that can happen.
The hon. and learned Member for Edinburgh South West talked about criminal activity. I have no doubt that the activity in the scenario I described would be considered criminal activity, but when my good friend the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the real elephant in the room and he did not. The real elephant in the room, certainly for me, is that, on such a broad definition of economic activity, the activities of trade unions in the United Kingdom could be brought under the scope of the Bill. I ask Members not to try to intervene to correct me because unfortunately that is the case. That is the real elephant in the room.
I do not believe that Ministers today do not consider trade unions to be an important and relevant part of civil society, but on Second Reading my right hon. Friend the Member for Leigh (Andy Burnham) gave the example of the Shrewsbury pickets, whose case was examined by the Secret Intelligence Service, and made the point that their convictions still stand. Indeed, there are right hon. and hon. Members of this House today who were right hon. or hon. Members of the House or indeed the Government in the 1980s when trade unions were seen as “the enemy within” and banned from representing members at GCHQ because it was considered that trade union membership and activity was incompatible with a commitment to international security, which is a position that is as absurd as it is downright insulting. I genuinely believe that Government Members have moved on from that positon.
Government Members may well wish to point to subsection (4), which suggests that:
“A warrant may be considered necessary as mentioned...only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”
They may feel that that gives sufficient protection. I must say that, in my experience, unfortunately it does not.
At this point I remind the Committee that I am a member of the GMB and Unite trade unions and I was formerly a senior official with Unite. That experience gives me insight that I wonder whether Ministers and Government Members, through no fault of their own, do not have. My plea is that they bear in mind that our economy is a globalised one, employers and industries are globalising and, in response, trade unions have had to do the same. Trade unions will gather together in bilateral agreements or bilateral alliances. In the UK, they may well join international trade union organisations such as the IMF—I should point out that that is the International Metalworkers Federation rather than any large economic body—or, as I did, they may well form a globalised trade union with other trade unions so that they meet globalised employers on the same basis and cannot be picked off, one against the other.
In the past, for example—this was quite a regular occurrence—I found myself in Canada on negotiations with mining and mineral extraction employers based in Brazil, working with trade unions from outside the UK. There were disputes with British Airways, which at the time was incorporated through International Airlines Group in Spain, and I found myself in Bangladesh working with the Bangladeshi trade unions that we were trying to form to help them develop trade union strength against the exploitation of shipbreakers. Globalised trade unions pursuing genuine avenues of trade disputes with globalised employers are a modern-day reality.
When the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the great fears that Opposition Members have that trade union membership could be seen as damaging to the nation’s economic wellbeing. If we seek to amend the clause to give the greater clarity that I understand Government Members do not wish to see, it is for good reasons of bitter experience—reasons that Ministers are perhaps not aware of, because of their own personal experience.
Keir Starmer
It is a pleasure to follow my hon. Friend, whose comments I endorse. I saw the Ministers nodding that they will take that away and consider it, and I am grateful for that indication. Rather than the broader points that have been discussed so far, I will concentrate my comments on clause 18(2)(c), which deals with
“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
The short point is this: if economic harm to the wellbeing of the United Kingdom is so serious that it amounts to a threat to national security, it is covered within subsection (2)(a). If harm to the economic wellbeing of the United Kingdom is a serious crime, it is already within subsection (2)(b). The Intelligence and Security Committee has made the point that
“if ‘national security’ is sufficient in itself, then ‘economic well-being…so far as [is] relevant to the interests of national security’ is redundant, since it is a subset of the former.”
The ISC went on to say:
“We have questioned both the Agencies and the Home Office on this matter and neither have provided any sensible explanation. In our opinion, this area is already sufficiently complex so drafters should seek to minimise confusion wherever possible. We therefore recommend that ‘economic well-being’ is removed”.
The Committee makes the same point that if economic wellbeing is already subsumed into paragraphs (a) and (b), paragraph (c) is not necessary. The Committee has asked repeatedly what paragraph (c) covers if not what is already within paragraphs (a) and (b), and I ask that question here today. I ask the Minister or anyone else to give me a single example of what it is envisaged paragraph (c) covers that does not fall within paragraphs (a) and (b).
Subsection (4) has been referred to today and on Second Reading as providing some sort of comfort that subsection (2)(c) is not a matter of concern. It says:
“A warrant may be considered necessary as mentioned in subsection (2)(c) only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”
To be clear, that does not mean the communication itself is outside the British islands, but that the communication relates to acts or intentions of persons outside the British islands. I endorse everything that was said about trade union and other activities that may be outside the British islands, but the suggestion that this provision would only catch communications outside the British islands is a wrong reading, in my submission.
The question on the table for the Minister is whether a single example can be given of something coming within subsection (2)(c) that does not come within subsections 2(a) and (2)(b). If not, how can the clause be justified?
Mr Hayes
I start my contribution to this short debate by confessing a pretty profound prejudice, which is that I am committed to and supportive of trade unions. I am a member of a trade union; my father was a shop steward; my grandfather was chairman of his union branch. I come from a long history of trade unionism, and I believe that the trade union movement in Britain has done immense good for the interests of the people. I am a Disraelian Tory, and so I believe in the elevation of the people, in which trade unions have played an important part. I could wax lyrical about one of my heroes, Joseph Chamberlain, in terms of the elevation of the people, but we do not have time for that. When I approach this clause and this subject, I do so with that profound prejudice. By the way, just as an aside, prejudice is immensely underrated in the modern age, but it is important that we balance all that is rational with all that we feel. Feelings matter.
I make it categorically clear that, as the hon. Member for City of Chester generously said, not only individual Ministers in this Government, but the Government as a whole have no intention that these powers should be used for the kind of political purposes he describes. That is not our intention. Actually—it is always good to go further than one’s officials want—I think we might need to be more emphatic about that in some form, because I want to make it crystal clear that the kind of scenario that he describes cannot happen in our country.
Our country is a free and open place where we celebrate the differences between people and the role played by the trade unions. I am prepared to go as far as necessary down the road to make that categorically clear. To that end, I suggest that I meet Frances O’Grady of the TUC to discuss this. I know her well. I went on a joint business-trade union delegation with her to Germany to look at apprenticeships when I was Skills Minister. I am more than happy to engage with the trade union movement to see what more we can do.
However, let us return to the point about economic wellbeing and these amendments. At the outset of his remarks, the hon. Gentleman rightly recognised that threats to economic wellbeing could be immensely damaging and fundamental in their effect and could be the business of a foreign potentate or another source of malevolence. He described a cyber-attack, which might be an attack on our critical infrastructure, on our financial services system or, heaven knows, on Government itself. The age we live in means that cybercrime, perpetrated either locally or internationally, is a threat that we must recognise and have the means to address, so it is right that the law—this Bill, which I hope will become an Act—includes reference to the interests of the economic wellbeing of the UK, but it is equally true, as the Opposition argued on Second Reading and elsewhere, that that interest is closely tied to national security.
One argument that has been made is that if we were to define national security more tightly, we might assuage fears of the kind the hon. Gentleman described. The trouble with defining national security more tightly is that that might of itself create additional rigidity that is unhelpful to the agencies in pursuit of their work. Successive Governments have hesitated to describe national security prescriptively, and having looked at these matters closely I understand why. Successive Governments have affirmed the idea that a small number of law enforcement agencies, the security and intelligence services and the armed forces need to be able to seek and use interception warrants for national security, for preventing and detecting serious crime and in the interests of economic wellbeing. I am reluctant, therefore, either to take economic wellbeing out of that list or to define national security more narrowly. I think that the breadth of those definitions is important for operational effectiveness.
There may none the less be more that we can do to deal with political fears, if I can put it in those terms. The existing law is clear that none of these powers can be used in the interest of a political party or in a particular political interest, but it may be that we can do more to offer reassurance. I am going a little further than we have until now because I want to create a bridge that we can cross. The Security Service Act 1989 and the Intelligence Services Act 1994 provide some protection, because they deal particularly with the issue of the interests of any political party being served by the powers. A case has been made about the Shrewsbury 24. Indeed, there was a debate in Westminster Hall on that very subject—I have the transcript here with me—promoted by the hon. Member for Liverpool, Walton (Steve Rotheram), who is a very good man and a very proud trade unionist; I know him well. The events at that time preceded the legislation that tightened protection. Notwithstanding that, I have heard the argument that has been made today.
The other reason why I do not want to significantly change the language on economic wellbeing, although I understand the argument about ambiguity, is that the phrase “economic wellbeing” reflects the language in domestic legislation—as my hon. and learned Friend the Solicitor General will know—the European convention on human rights and the European Union directive that covers the scope of interception powers. It is difficult to think of a better, more appropriate or more widely recognised term. Substituting another term could be taken to imply that the agencies should not engage in certain activities in the future that they undertake now. One can easily imagine a future judicial commissioner querying why the language has changed from that used in the Regulation of Investigatory Powers Act 2000, and asking whether what the agencies do should change, too.
I am hesitant to make that fundamental change. I am not sure it would do anything for transparency. Indeed, removing economic wellbeing and placing what is done under the broader umbrella of national security might lead to less, rather than more, clarity in the process. As the hon. Member for City of Chester described, some of the events that would be included under the heading “economic wellbeing” could be sudden and of crisis proportions, such as the cyber-attack to which he and I referred, and require prompt and decisive action. Such crises are, by their nature, unpredictable and we must not limit the agencies’ ability to deal with them.
Joanna Cherry
I listened carefully to the Minister, and I noted that he said he wanted to provide a bridge on the issue of national security and can perhaps deal with issues and political fears related to that, but that he does not want to significantly change the language on economic wellbeing and is not happy with the SNP amendments in relation to reasonable suspicion. I do not want to get too bogged down on trade union rights and I certainly do not want to kick down the bridge that the Minister wants to build, but I have to say that, on trade union rights, actions speak louder than words. This Government have introduced some of the most draconian anti-trade union legislation that has been seen in this country for many years—worse than Mrs Thatcher’s. In that context, I do wonder whether we can be assured about the Government’s intentions in relation to trade unions. However, the Minister is an honourable man; I take him at his word and will listen to what he has to say in the future on this issue. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.
Clauses 19 and 20 ordered to stand part of the Bill.
Clause 21
Approval of warrants by Judicial Commissioners
Keir Starmer
I beg to move amendment 62, in clause 21, page 17, line 4, leave out from “must” to “the following matters” in line 5 and insert “determine”.
The Chair
With this it will be convenient to discuss amendment 89, in clause 21, page 17, line 10, leave out subsection (2).
Keir Starmer
This is where we pick up the discussion about scrutiny. As the amendments to clause 17 were withdrawn, the premise here is that of a dual function, carried out first by the Secretary of State and then by the judicial commissioners. To be clear, we welcome the involvement of judicial commissioners, and the amendments focus on their role in the process. We have had the discussion about whether the judicial commissioners should be the default decision-makers—this is a different exercise.
What is clear in clause 21(1) and (2) is that what is envisaged in the Bill is a review exercise by the commissioners. That is clear from the words “must review”. Subsection (1) states that the judicial commissioner must review the person’s—in this case, the Secretary of State’s—conclusions as to necessity and proportionality, and subsection (2) states that
“the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”
It is therefore a review mechanism, and it is a review according to judicial review principles.
Two problems arise from that. The first is that it is not, therefore, truly a double lock. A double lock denotes a decision by the Secretary of State, which survives in clause 17, and a decision by a judge—a judicial commissioner—under clause 21, but this is not that sort of double lock.
The second problem, the reference to judicial review, is equally profound. Committee members will remember my question to Lord Judge:
“Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends”—
in relation to judicial review of warrants—
“and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.”
That is the problem with judicial review here.
I will quote Lord Judge’s response, because he captures the real cause for concern here:
“I think ‘judicial review’ is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, ‘Wednesbury unreasonableness’—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[ Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 67-68, Q220.]
That is one of the most experienced and well-respected judges in the country indicating that in those circumstances judicial review is not a sufficient indication of the test.
Amendment 62 would require the judicial commissioner to decide for him or herself on necessity and proportionality. Amendment 89 would take out the reference to judicial review. The scheme and structure of the Bill would therefore be retained. There would be a double lock. Both the Secretary of State and the judicial commissioner must be satisfied that necessity and proportionality is made out, at which point the warrant would come into effect, unless of course it is an urgent warrant. There would be clarity about the role of the judge.
In previous exchanges, it has been accepted that the judicial commissioner will see the material that is before Secretary of State and therefore can make that decision. The lock therefore becomes what we have termed an equal lock, where both parties make a decision on the substantive merits of the case. That gets rid of the potential ambiguity with which Lord Judge was concerned. It would then be absolutely clear that this is truly a double lock. It is a simple and straightforward amendment that would bring real clarity to the exercise.
Suella Fernandes
I am listening to the hon. and learned Gentleman with interest, and I appreciate his exploration of the meaning of this term. What is his opinion of Lord Pannick’s assessment of the insertion of judicial review? He concludes that it is sufficient, flexible but clear and strikes the right balance.
Keir Starmer
I know and respect Lord Pannick hugely, but there is no guarantee in the Bill that his preferred way of approaching this under judicial review principles is the one that will be carried out in practice; he has no control over the test that will be applied. Lord Judge’s concern is that some judges may consider that this is an area where they virtually take the decision, which is what they do in certain cases involving particular human rights issues, where they get very close to the decision, while other judges will be much more deferential.
With the best will in the world, Lord Pannick puts forward the view that judicial review will work, but there is no guarantee of that. Unless it is set out in the Bill, the test will be simply left to be applied on a case-by-case basis. Nobody, in this formulation, could argue that a judge who applied long-arm reasonableness was acting in any way other than in accordance with the test.
Obviously, I respect what Lord Pannick says, but Lord Judge was making a different point that goes back to accountability, to some extent. He was alive to the fact that once judges are involved in the decision-making process, a torch will be shone on them in relation to these warrants. There will be inhibitions on what they can say and the circumstances in which anybody could hold them to account. We have rehearsed that. I read into his answer that he wanted absolute clarity and a tightness of test so that the judges knew what they were to do and could operate within those confines, thus protecting themselves from the suggestion that they had applied too close or too loose a test. It is partly about clarity, with one eye on judicial accountability in the longer term for the decisions that have to be made.
Lucy Frazer
The hon. and learned Gentleman earlier cited Sir Stanley Burnton and said, pretty much verbatim, that he would encourage Government Members to look carefully at any submissions that Sir Stanley Burnton made, as he was extremely knowledgeable. On this issue, Sir Stanley said that he was happy with the test and that it might be difficult to draft it more tightly. Another experienced member of the panel who gave evidence, Lord Reid, specifically stated that he thought the judges’ role was
“about oversight…and not about decision making.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 84, Q259.]
Keir Starmer
Sir Stanley is a friend and colleague, and I have had the privilege of appearing in front of him on a number of occasions in cases involving national security, in particular control order cases. I think that what he was indicating was that, in his experience and on his own approach, as any of the cases will demonstrate, he is in favour of intense review by the judge. He anticipates that the measure allows that intense review. I have no doubt that that is the approach he personally would take, because that would be consistent with the approach that he has always taken in such cases.
Suella Fernandes
It is an important issue. Evidence to the Joint Committee from Sir Stanley Burnton and Lord Judge was unequivocal, in that Wednesbury unreasonableness would have no place in this context. That seems to be maintained by Sir Stanley Burnton in the evidence that we have received more recently. Does the hon. and learned Gentleman agree that Wednesbury unreasonableness has no role in this context, especially by virtue of reference to necessity and proportionality?
Keir Starmer
The reference to proportionality and necessity does not help in this context, because the question for the judge on this formula is not, “Is the measure necessary? Is it proportionate?” Judges often make, and are well used to making, that decision. The decision for them on this formula is whether, when the Secretary of State decided that it was necessary and proportionate, she was exercising her powers in a way that cannot be questioned, applying the principles of judicial review. That is the real difference.
Whether I think the long-arm Wednesbury test is appropriate is neither here nor there. So long as we have clause 22(2), it is open to a judge to apply the old-fashioned Wednesbury test, because that is within the principles of judicial review. The case law obviously varies. The closest possible scrutiny is usual in control order or TPIMs cases, but there are many other examples involving national security where the judges have persistently said that long-arm review applies. There are two strong lines of case law, and I am arguing that one is better than the other. The point is whether the Bill is clear enough about the test to be applied.
This is a real opportunity, as much as a challenge, for the Government. The provision is a new one, and it is a double lock if properly applied. It ought to be substantive. The judge ought to decide whether a warrant is necessary or proportionate. As long as he or she does, the warrant comes into existence and can be relied upon. In the 21st century, that is the right approach when such a provision is going into statute for the first time.
Lucy Frazer
I think the hon. and learned Gentleman is saying that he favours the same test being applied by both the judge and the Home Secretary. If so, that is in conflict with Sir Stanley’s evidence. He said that he would give significant weight to the view of the Home Secretary. If he gave significant weight to the Home Secretary, necessarily he would be reviewing what the Home Secretary has done. If that is appropriate, the word should be “review”, whether it is judicial review or not. It is a review, not an assessment afresh of the same decision.
Keir Starmer
I am grateful for that intervention. There are several different positions here, and we are finding our way. The amendments would take out the review element and make it clear that it is a double lock. There would then be a separate decision by the Secretary of State and a decision by a judge on the same material. Of course, a judge would always give weight to the Secretary of State’s view, but they would still come to a decision of their own. That is position No. 1, and let me be clear that that is what the amendment is aimed at—a true and equal lock.
Joanna Cherry
Does the hon. and learned Gentleman agree that amendment 89, tabled by my hon. Friend the Member for Paisley and Renfrewshire North and I, would specifically take out subsection (2) and the reference to judicial review? That would make clear what he is saying: amendment 62, which I also support, would amend subsection (1) so that the judge would determine the review in regard to necessity and proportionality, and judicial review would come out completely.
Keir Starmer
I agree. I notice that my name is not on amendment 89. I think it should have been, because amendment 62 only works if subsection (2) comes out, but that is neither here nor there at this stage. I am not quite sure what happened, but given that both amendments have been tabled, it does not matter one way or another.
To be clear, the position is that it should be a substantive decision by the judge according to necessity and proportionality, and those terms obviously have their own special application. Through amendment 89, the review, whether by judicial review principles or otherwise, would come out, making it a true double and equal lock.
It is a new approach and a new provision, so it is for Parliament to decide on the appropriate way forward, but the amendments would give clarity and a real safeguard with an equal lock. That is the position. There probably is a fall-back position, which is that if it is to be a review of some sort, amendment 89 should stand on its own feet—that the review should not be on the principles of judicial review, and something more would need to be written into the Bill.
I do not know what response the Minister will give, but this matter goes to the heart of the issue, and it may be that further consideration needs to be given to the precise test. As it stands, the test is insufficiently precise and will lead to difficulties in its application. It is a matter of real concern to the judiciary. Lord Judge does not make such comments without a good deal of thought. If he is concerned about the provision, the Government should be, too. The simple way through is to have a simple but substantive double and equal lock.
The Solicitor General
The debate has been interesting. On a point of order, Mr Owen, I want to ensure that we are dealing with both groups of amendments. The grouping that I have seeks to group new clauses 1 and 5 in one group—
The Solicitor General
That is fine. I am grateful to you, Mr Owen. I will address those amendments, rather than the new clauses, which will be dealt with in the usual way, but the purport of the argument is similar.
To summarise, amendment 89 would remove the provision in the Bill that specifies that when reviewing the decision by a Secretary of State or a Scottish Minister to issue a warrant, the judicial commissioner must apply the same principles as would be applied by a court in an application for judicial review. Instead, the amendment would require him or her to determine the necessity and proportionality of a warrant for him or herself.
There has been a lot of debate on the important report by David Anderson and the Royal United Services Institute review. They have played a huge part in bringing the Bill to germination and its current state. There is a danger here. I listened very carefully to the evidence of Lord Judge and, indeed, asked him a number of questions. The dilemma that I put to him still remains. I can see the attractiveness in seeking to narrow or prescribe the particular criteria to be applied by the commissioners in every instance, but there is a danger that, in doing so, we fetter the proper discretion of judges exercising their review function in looking at each case purely on a case-by-case basis.
The hon. and learned Member for Holborn and St Pancras set out his stall very clearly. He prays in aid the equal lock, as he calls it. In essence, he wants a different approach from that which the Government say we should take. We make no apology that the decision made by the Secretary of State is reviewed by the judicial commissioner before coming into force. That is a very simple, staged approach that clearly reflects the way in which case law is going and is also ahead of the curve when it comes to the development of judicial oversight of warrantry in these particular cases.
I will deal with the Anderson carve-out, if I may use that phrase. The problem with the genuine intention of David Anderson in trying to carve out what he recognised to be an important part of the function of Government—namely, national security and foreign affairs, where he recognised that the Executive are the part of our constitution best placed to deal with those matters—and then creating a certification process is that that, in itself, is juridicable. An Executive decision will be made that is, in itself, capable of challenge. My concern is that, however well intentioned attempts to create a hard and fast definition that creates a theoretical space for Ministers to act might be, we will end up with further difficulty, further lack of clarity and, frankly, further litigation that means that the Bill is not future-proof in the way that I want it to be.
Keir Starmer
To save time—I probably should have made this clearer an hour ago when we were rowing about other things—I had seen this certification clause, or new clause 1, as going with the amendments to clause 17. In other words, it was my acceptance that, on certain measures, there ought to be a certificate from the Secretary of State for the limited accountability that I accept is there. Therefore, if it is helpful, amendments 62 and 89 are intended to be taken on their own, not cluttered by the certification process, which possibly would have been better discussed under clause 17.
The Solicitor General
I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.
Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life. It is a concept that has evolved and that will continue to evolve. It is flexible, too.
Joanna Cherry
It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.
The Solicitor General
Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.
Joanna Cherry
But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?
The Solicitor General
They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.
Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.
Suella Fernandes
Does my hon. and learned Friend agree that a similar inclusion of a reference to judicial review has worked well in other legislation and in other regimes, such as in relation to control orders and terrorism prevention and investigation measures? We have a history of such references not causing major problems.
The Solicitor General
I entirely agree with my hon. Friend. It would not be right for me to make an easy draw-across to the TPIM regime. The hon. and learned Member for Holborn and St Pancras has experience of TPIMs, and I was on the Bill Committee that passed the TPIM law back in 2011, so I have a keen interest in the evolution from what were control orders to TPIMs. The point is staring us all in the face: myriad different circumstances will confront judicial commissioners. It would be too easy for the Committee to come to a conclusion that, somehow, we should create an artificially hard and fast set of criteria that would prevent the judicial commissioners from exercising their duties when considering the varying scale and nature of the applications that they will receive.
Simon Hoare
My understanding of what the Solicitor General is saying—perhaps he will confirm this—and my reading of the Bill is that the bar is being set a lot higher than the hon. and learned Member for Edinburgh South West seems to imply. The onus in the first instance will be on those who will be making the case for the warrant. The Home Secretary, for example, will then review it to see whether it passes the tests in the Act and will do so, as will the author of the case before the Minister, in the knowledge that they will be, for want of a better phrase, peer reviewed by a commissioner. Therefore, the review of the review of the review is almost a triple lock of the case made by the authority seeking the warrant.
The Solicitor General
That is an interesting way of putting it. I want to make it clear that the review is on an appeal. There is a danger that we will end up mistakenly looking at some sort of a de novo application entirely on its merits, not an appeal. There are other mechanisms by which this matter could be taken further up. At this stage, it is part and parcel of the decision being made. That is an important point of clarification.
Keir Starmer
Can the Solicitor General point me to the words in clauses 1 and 2 that would make it wrong for a judge to apply long-armed judicial review principles to a decision?
The Solicitor General
I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.
In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.
In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.
Joanna Cherry
I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.
On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.
Keir Starmer
I am grateful to the Solicitor General. I have listened carefully to what he has said. There is a difference between us, because I seek to ensure through the amendment that the judicial commissioner is a proper decision maker.
To make the argument that the judges might be fettered is really to misunderstand the amendment that I have tabled. The duty of the judge is to apply the test that Parliament sets out in statute. That is straightforward, and if Parliament is clear about the test, the judge is exercising his or her duties properly in applying the test. There is no question there, but there is this fundamental point between us as to whether it should be review or decision making. I think that is clear enough.
In light of the argument, at this stage I will not push this amendment to a vote, but I will reserve it for a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Hayes
I beg to move amendment 2, in clause 21, page 17, line 13, leave out from “a” to “grounds” and insert
“decision of the Secretary of State to issue a warrant,”.
This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).
Mr Hayes
These are minor drafting changes, to take account of the fact that clause 21 may also apply in cases where warrants have already been issued by the Secretary of State, and that urgent procedures are covered in clause 22, and that clause 21 may also apply in a case where the warrant has been issued by Scottish Ministers. They are uncontentious changes, and I beg to move the amendment on that basis.
Amendment 2 agreed to.
Amendment made: 3, in clause 21, page 17, line 15, leave out from “a” to “grounds” and insert
“decision of the Scottish Ministers to issue a warrant,”.—(Mr John Hayes.)
This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).
Keir Starmer
I beg to move amendment 102, in clause 21, page 17, line 23, at end insert—
“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.
(7) A Judicial Commissioner must instruct a special advocate when considering applications for a warrant—
(a) in the interests of national security; or
(b) involving the consideration of items subject to legal professional privilege.
(8) For the purposes of these proceedings special advocates are persons appointed by the relevant law officer.
(9) The ‘appropriate law officer’ is—
(a) in relation to warrants in England and Wales, the Attorney General,
(b) in relation to warrants in Scotland, in relation to (7)(a), the Advocate General for Scotland, and in relation to (7)(b), the Lord Advocate, and
(c) in relation to warrants in Northern Ireland, the Advocate General for Northern Ireland.
(10) A person may be appointed as a special advocate only if—
(a) in the case of an appointment by the Attorney General, the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,
(b) in the case of an appointment by the Advocate General for Scotland or the Lord Advocate, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and
(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.”
The Chair
With this it will be convenient to discuss the following:
Amendment 38, in clause 21, page 17, line 23, at end add—
“(6) In considering a warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.
(7) In considering a warrant pursuant to this Part which is being sought—
(a) in the interests of national security;
(b) in the interest of the economic well-being of the United Kingdom in so far as those interests are also relevant to the interests of national security; or
(c) involving the consideration of items subject to legal professional privilege,
a Judicial Commissioner must instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.
(8) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—
(a) for England and Wales, the Attorney General,
(b) for Scotland, the Advocate General for Scotland, and
(c) for Northern Ireland, the Advocate General for Northern Ireland.
(9) A person may only be appointed as a special advocate by the—
(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,
(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and
(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”
Amendment 39, in clause 21, page 17, line 23, at end insert—
“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.
(7) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—
(a) for England and Wales, the Attorney General,
(b) for Scotland, the Advocate General for Scotland, and
(c) for Northern Ireland, the Advocate General for Northern Ireland.
(8) A person may only be appointed as a special advocate by the—
(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,
(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and
(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”
Amendment 45, in clause 23, page 18, line 22, after “addressed”, insert—
“(c) any Special Advocate appointed.”
Amendment 46, in clause 23, page 18, line 23, after “warrant”, insert
“, or any Special Advocate appointed,”.
Keir Starmer
I am very happy to speak, particularly on amendments 38 and 39. May I just be clear with Committee members about the difference between the amendments? They are alternatives. They are provisions that are intended to allow the judicial commissioner to instruct a special advocate to represent the interests of any person or persons subject to the warrant, or the wider public interest.
The difference between the two amendments is that amendment 39 is purely permissive, so that, if a judicial commissioner thinks that he or she wants the assistance of a special advocate, amendment 39 allows that. Amendment 38 is more prescriptive, because it sets out certain circumstances in which a special advocate should be appointed. However, they are deliberately put in alternative form.
I will speak predominantly to amendment 39. There will be circumstances, no doubt, where the judicial commissioner wants assistance from somebody other than the Secretary of State in conducting the exercise that he or she is conducting. If the test remains as set out in clause 21, there may be points that the judicial commissioner wants to hear about, to hear upon and to take into account. This amendment provides a mechanism for him or her to do so.
Experience in the past has shown that, if a clause such as this, or similar to this, is left out, problems arise. Then, there is an attempt, usually by the court, to find its own inherent jurisdiction to allow an amicus or somebody else to be instructed. And it is not straightforward, because some courts and tribunals have inherent jurisdiction and others do not. There are many arguments about that, which we probably do not need to rehearse this afternoon.
This amendment cuts through all that by saying that, if in any given circumstances, a judicial commissioner wants to hear submissions from “A.N. other party”, it allows him or her to have someone make those submissions, either in writing or in person.
I am not personally wedded to the special advocate scheme. If the Solicitor General thinks there is any merit in that argument, I am very happy to work with the Government on a proposal to achieve the same end, but I think that the fall-back of relying on inherent jurisdiction is inherently risky.
Joanna Cherry
SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted
“in the interests of the economic well-being”
in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with
“the consideration of items subject to legal professional privilege”,
which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.
I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would
“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged”
and
“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.
The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be
“to represent the interests of any person or persons subject to the warrant or the wider public interest”
in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.
The Solicitor General
I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.
I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.
I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.
In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.
Keir Starmer
I have nothing to add. In the light of what the Solicitor General has said I will not press the amendment. I look forward to what he produces and to further discussing that. I beg to ask leave to withdraw the amendment.
Joanna Cherry
I have nothing to add either.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
The Chair
With this, it will be convenient to discuss:
New clause 1—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify a warrant in those cases where—
(a) The Secretary of State has reasonable grounds to believe that the conduct authorised by the warrant is necessary pursuant to section 18(2)(a) (national security) and relates to—
(i) the defence of the United Kingdom by Armed Forces; or
(ii) the foreign policy of the United Kingdom.
(b) The Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(2) A warrant certified by the Secretary of State under subsection (1) is subject to approval by a Judicial Commissioner.
(3) In deciding whether to approve a warrant certified by the Secretary of State under subsection (1), the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State under subsection (1); and
(b) in the opinion of the Judicial Commissioner, approving the warrant is necessary on relevant grounds under section 18(2)(a) and subsection (1)(a) or (b) of this section.
(4) Where a Judicial Commissioner refuses to approve a warrant certified by the Secretary of State under this Section, the Judicial Commissioner must produce written reasons for that decision.
(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a warrant under subsection (3), the Secretary of State, or any special advocate appointed may ask the investigatory Powers Commissioner to decide whether to approve the warrant.”
This new clause is intended to replace existing Clause 21 and provides for the Secretary of State to certify warrants in cases concerning defence or foreign policy before they are considered by a judicial commissioner.
New clause 5—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—
(a) the defence of the United Kingdom by Armed Forces; or
(b) the foreign policy of the United Kingdom.
(2) A warrant may be certified by the Secretary of State if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.
(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);
(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and
(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.
(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”
The Solicitor General
We have dealt admirably with many of the issues in the clause and I will not speak to the stand part debate.
Keir Starmer
I do not wish to speak to new clause 1. It stands or falls with the clause 17 amendments and is to that extent withdrawn along with them.
Joanna Cherry
My new clause 5 is in the same category as new clause 1, the ground of which I think we have covered. The new clauses are slightly different, in that they followed David Anderson’s initial recommendation, but we will obviously revisit the matter at a later stage so I will not take up time unnecessarily to labour the point.
Question put and agreed to.
Clause 21, as amended, accordingly ordered to stand part of the Bill.
Clause 22
Approval of warrants issued in urgent cases
Joanna Cherry
I beg to move amendment 91, in clause 22, page 17, line 29, at end insert—
“(1A) A warrant under this section can only be issued in an emergency situation posing immediate danger of death or serious physical injury to a person.”
This amendment, and others to Clause 22, seek to require urgent warrants can only be issued where it is necessary in an emergency situation posing immediate danger of death or serious physical injury; require that a Judicial Commissioner must immediately be informed that such a warrant has been issued; and reduce the period within which a Judicial Commissioner must decide whether to authorise the warrant to 24 hours after issue.
The Chair
With this it will be convenient to discuss the following:
Amendment 40, in clause 22, page 17, line 30, after “must”, insert “immediately”.
Amendment 41, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert
“24 hours after the warrant was issued.”
Amendment 42, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert
“48 hours after the warrant was issued.”
Joanna Cherry
Bear with me a moment, Mr Owen, I have my notes in a bit of a schmozzle, as we say in Scotland—[Interruption.] Or as they say in Ireland, to be accurate. In Scotland they would say they were in a fankle. If you give me two minutes, I will sort myself out.
Joanna Cherry
Thank you, Mr Owen, and apologies to Committee members. The purpose of the amendments is to—sorry, I have lost my train of thought completely.
The Solicitor General
I think we were dealing with urgent cases. I hope that is of some assistance.
Joanna Cherry
Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.
There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.
Victoria Atkins
I sat with my hon. Friend the Member for Fareham and my hon. Friend and neighbour, the Member for Boston and Skegness, on the Joint Committee, where we debated this in great detail. It is right to say that it was not a unanimous decision of the Committee to change the time limit for the urgency provisions. Indeed, I said to the Committee that if that point was ever raised, I would make clear that the decision was not based on any evidence we heard. I will not say that members of the Committee drew the figure out of the air, but—[Interruption.]
Victoria Atkins
Okay, out of the air. The Joint Committee arrived at that figure on the basis of no evidence. That may assist the hon. and learned Lady.
Joanna Cherry
I am grateful to the hon. Lady for being so precise and clear about that. Essentially, the concern about clause 22 is that the scope of the urgent mechanism is extremely broad and ill defined. In my view, it could fatally undermine any safeguard provided by a mechanism for judicial authorisation or indeed judicial review in the double lock.
The Bill provides that an urgent warrant can be issued by the Secretary of State in a case where she considers there is an “urgent need”, which is not defined. We then have the three-day period. As the hon. Lady said, no specific reason has been given for the selection of three days. The Joint Committee took the view that it should be shortened significantly to provide for approval within 24 hours. I think the ISC suggested 48 hours—I apologise if I have got that the wrong way round.
The purpose of the amendments is to remove the urgent provision in the Bill altogether or to restrict it to very limited circumstances, with the urgent authorisation having to take place during a 24-hour period. The concern underlying the amendments is that in their absence, the provisions for urgent warrants in the Bill will drive a coach and horses through even the double lock provision, because they will enable the judicial authorisation part of the procedure to be bypassed in very loosely defined circumstances. That is the case as precisely as I can put it.
Keir Starmer
I will be brief. There is a real concern about the provision for urgent cases being three days. Although we need such a provision, that period allows warrants to be operable before the double lock can apply, and therefore the period should be as short as possible.
The problem is not only that three days is too much but that three days can, I think, be five days, because it is three working days, and therefore there is the potential for three days to morph into more than three. If I am wrong about that, I will happily be corrected. I have put my name to the amendments suggesting 24 and 48-hour periods, to give the Government the option to reduce the threshold to either of those and put it in terms of hours, which removes any possible confusion about the use of the word “days”.
The Solicitor General
This is, of course, an important issue that has already seen a good deal of consideration for the Government and a move away from the original proposal to three working days; the hon. and learned Gentleman is right about that.
Although we are considering the matter carefully, at this stage the right balance is being struck between the interests of the security services and the other agencies in ensuring that crime is detected and prevented at the earliest possibly opportunity, and the interests of preserving the balance between the rights of the individual and the need to deal with crime and threats to national security. I am happy to consider amending the relevant draft codes to deal with the question about the notification to judicial commissioners, so that it is made clear on the face of the code that that should happen as soon as reasonably practicable. That wording is more appropriate than “immediately”, given that it may take a small period of time to draw together the materials that the commissioner will wish to review when considering whether to approve the warrant.
The hon. and learned Member for Edinburgh South West made a point about decision making in a vacuum. The commissioner will have the decision of the Secretary of State and all the materials upon which that Minister has made the decision, as well as access to further material. I think it is clear that the decision maker will have everything they need and more to come to an informed and reasoned decision based upon the principles of judicial review. On the basis of my undertaking to consider amending the draft code of practice, I hope that the hon. and learned Member for Holborn and St Pancras feels able to withdraw the amendment proposing the word “immediately”.
Let me deal with the central points about the decision and the length of time within which the warrant should be approved. The effect of the amendments would be to reduce that, and I recognise that the Joint Committee that undertook the pre-legislative scrutiny of the Bill made a similar recommendation. We have therefore responded in an appropriate way by shortening the window within which urgent action can be taken. That has been widely welcomed. It is an important consideration and an example of how, throughout this procedure, the Government have taken note of reports, listened and acted accordingly on those recommendations.
It is not in anybody’s interests to create so tight a statutory framework that decisions end up being rushed. I therefore consider that the three working days now provided for in the Bill should give sufficient time for the judicial commissioner to be presented with and to consider the grounds upon which the Secretary of State decided to issue the urgent warrant. My worry is that by reducing the time period even further, we would give the commissioner even less time, which would lead to the sort of decision making that would perhaps not be in anybody’s interests, let alone those of the state.
Amendment 91 seeks to define urgency on the face of the Bill and to replace the definition currently provided for in the draft statutory codes of practice with a narrower definition. As the Committee will appreciate, we must provide law enforcement and the security and intelligence agencies with an operationally workable framework. We will have failed with this Bill if we provide the agencies with the powers that they need, but with ones that cannot keep up with the pace and scale of the threats that we face. I know that it is always a challenge for legislators to try and—to use the modern phrase—“future-proof” legislation, but it is important that we create a framework that is not only clear and simple to understand, but sufficiently flexible to take into account the fact that, from month to month, the nature of the threat changes.
I am afraid that the effect of the amendment would be to curtail that ability because the definition would be too narrow. The draft statutory codes of practice, which we have all been considering, define urgency, which is determined by whether it would be reasonably practicable to seek the judicial commissioner’s approval to issue the warrant in the requisite time. That time period would reflect when the authorisation needs to be in place to meet an operational or investigative need.
The code sets out the three categories with which we are familiar: first, where there is the imminent threat to life or serious harm, and I gave the example of a kidnap case earlier. The second is where there is an valuable intelligence-gathering opportunity, where the opportunity to do so is rare or fleeting—that might involve, for example, a group of terrorists who are just about to make that trip overseas and are making the final preparations to do so. The third is where there is a time-limited significant investigative opportunity—here I speak with years of experience of dealing with drugs cases—such as the imminent arrival of a major consignment of drugs or firearms, when timing is of the essence.
I am afraid that narrowing the definition of urgency so that it only relates to an immediate danger of death or serious physical injury to a person would mean significant lost opportunities when it comes to investigation and gathering of intelligence. It would have an impact on the ability to act in a way that would allow interception at a time, for example, that would be apposite to capture a particular drugs seizure.
Another example would be the terrorist cases that I deal with week in, week out—in terms of the function of the Law Officers granting consent to prosecution. If, for example, a group was making final preparations to travel out to Syria to join Daesh, it would cause a problem for the security and intelligence agencies if they were not able to seek urgent authorisation to intercept telephones because there was no immediate danger of death or serious physical injuries.
In my considered opinion, I am afraid that the amendment would allow a significant gap in the security, intelligence and law enforcement agencies’ ability to keep us safe. I do not think that any hon. Member in this House wants that to happen. I know that it not their intention but it is my genuine concern. On that basis, I invite hon. Members to withdraw the amendment.
Joanna Cherry
I have listened carefully to the Solicitor General. The difficulty for him and the Government is this: according to recent case law from Strasbourg, a 48-hour timeframe for authorisation would be the maximum to harmonise the process with that recent case law. The case of Zakharov v. Russia included that a complaint for urgent interception could occur without judicial authorisation for up to 48 hours. There really is no reason why the UK should allow a longer period for approved surveillance than Russia. The difficulty with three working days is that if they fall over a weekend, it can mean five days or, indeed, if it is a bank holiday weekend, six days. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 ordered to stand part of the Bill.
Clause 23
Failure to approve warrant issued in urgent case
Joanna Cherry
I beg to move amendment 43, in clause 23, page 18, line 7, leave out “may” and insert “must”.
This amendment, and others to Clause 23, would require a Judicial Commissioner to order that material collected under an emergency warrant which he does not subsequently authorise, be destroyed, except in exceptional circumstances.
The Chair
With this it will be convenient to discuss amendment
Amendment 44, in clause 23, page 18, line 9, leave out paragraphs (3)(b) and (c) and insert—
“(3A) If the Judicial Commissioner determines that there are exceptional circumstances, the Judicial Commissioner must instead impose conditions as to the use or retention of any of that material.”
Joanna Cherry
I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.
An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.
The Solicitor General
I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much begs the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.
The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.
Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.
In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.
Joanna Cherry
I have nothing to add, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.
Clause 24
Members of Parliament etc.
Keir Starmer
I beg to move amendment 104, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—
‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.
(2) Special procedure material subject to subsection (1) will include—
(a) communications which are subject to legal professional privilege;
(b) journalistic material which a person holds in confidence; and
(c) communications sent by, or intended for, a member of the relevant legislature.
(3) The warrant subject to subsection (1) may only be granted on application to a Judicial Commissioner.
(4) The Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—
(a) a criminal offence has been committed;
(b) the material is likely to be of substantial value to the investigation of that offence;
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;
(d) it is in the public interest that the warrant is granted, having regard to the—
(i) benefit likely to accrue to the investigation and prosecution if the information is accessed,
(ii) importance of the prosecution, and
(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of relevant legislature.
(5) Material is subject to legal professional privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made in—
(i) connection with the giving of legal advice, or
(ii) connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.
(6) A person holds journalistic material in confidence for the purposes of this section if—
(a) it is held subject to such an undertaking, restriction or obligation;
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.
This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.
The Chair
With this it will be convenient to discuss the following:
Amendment 92, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—
‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.
(2) Special procedure material under subsection (1) will include—
(a) communications which are subject to legal professional privilege;
(b) journalistic material which a person holds in confidence;
(c) communications sent by, or intended for, a member of a relevant legislature.
(3) A warrant under subsection (1) may only be granted on application to a Judicial Commissioner.
(4) To approve a warrant under subsection (3), a Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—
(a) a criminal offence has been committed,
(b) the material is likely to be of substantial value to the investigation of that offence,
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail, and
(d) it is in the public interest that the warrant is granted, having regard to the—
(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed,
(ii) the importance of the prosecution, and
(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of a relevant legislature.
(5) Material subject to legal professional privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice or;
(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.
(6) A person holds journalistic material in confidence for the purposes of this section if—
(a) it is held subject to such an undertaking, restriction or obligation; or
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.
This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.
Amendment 63, in clause 24, page 19, line 7, leave out subsection (2).
Amendment 64, in clause 24, page 19, line 8, at end insert—
‘(2A) Where a warrant is likely to cover special procedure material, the procedure set out in subsection (2C) applies.
(2B) Where a warrant is likely to cover excluded procedure material, the procedure set out in subsection (2D) applies.
(2C) Further to requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover special procedure material if —
(a) There are reasonable grounds for believing that an indictable offence has been committed,
(b) There are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),
(c) Other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,
(d) It is in the public interest having regard to—
(i) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or
(ii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.
(2D) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover excluded procedure material in accordance with provisions in Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) and Schedule 5 of the Terrorism Act 2000.
(2E) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under Schedule 1 of PACE, unless seeking this information under PACE would defeat the purpose of the investigation.
(2F) In this section “special procedure material” means—
(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984; or
(b) correspondence sent by or intended for a member of the relevant legislature.
(2G) In this section “excluded procedure material” has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.”.
Amendment 80, in clause 225, page 176, line 44, at end insert
“and for the purposes (and only the purposes) of this Act, including the application of paragraphs (a), (b) and (c), a “criminal purpose” includes the purpose of—
(i) doing or facilitating anything involving an imminent threat of death or serious injury or an imminent and serious threat to national security, or
(ii) concealing, or impeding the detection or prevention of, the doing or facilitation of any of those things;”.
Keir Starmer
I will speak first to amendment 92, which is on page 18 of the amendment paper. The amendment would introduce additional protection for three special categories: those involving legal professional privilege; that involving journalistic material; and that involving members of a relevant legislature, including MPs. I will also address amendment 63, which is on page 19 of the amendment paper and would remove clause 24(2), to be replaced by amendment 64. For the benefit of the Solicitor General, I indicate that I will address only the principle. Having reviewed the wording, the amendments would not achieve the intended purpose for all the categories I mentioned, and therefore the amendment 104 will not be pressed to a vote. I am therefore speaking to the principles relating to legal professional privilege, journalistic material and members of a relevant legislature.
Joanna Cherry
Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.
The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.
Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.
The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.
Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.
I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:
“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”—
referred to in Scotland as the obligation of confidentiality—
“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”
I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.
The Solicitor General
I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.
As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.
I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a Member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.
Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.
It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.
The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.
Keir Starmer
Can I ask the Minister about journalistic sources? I am concerned that there is nothing about them on the face of the Bill. He will know how anxious journalists are about this. Will he consider whether something should be put on the face of the Bill? There is an inconsistency: in other parts of the Bill, such as clause 68, there is express provision relating to journalists. There is something in the code of practice, but there is nothing on the face of the Bill, which is the problem. Without committing himself to a particular form of words, will he commit to considering one and perhaps liaising with us about what form it could take?
The Solicitor General
I am mindful of the fact that my colleague the Security Minister is meeting with the National Union of Journalists. I cannot commit the Government to a particular course of action, but let me put this on record. We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain.
At the same time, there is a danger. We must not unduly fetter, on the face of the legislation, the important work of our law enforcement, security and intelligence agencies. We live in an age of constant blogging and other social media tools. Journalists themselves do not like being defined as a profession. I have been criticised in the past for using that terminology when talking about journalists, for example in the context of the Leveson process. Now, however, there are increasingly wide and loose definitions of who are journalists and what journalism is, and my worry is that that will, and does, inadvertently prevent legitimate investigation of those who are threatening our national security or who are planning to commit serious crime.
Keir Starmer
I have already indicated that I am not putting the amendment to the test. I beg to ask leave to withdraw the amendment.
Joanna Cherry
That is my position as well. I am happy to have addressed the principle at this stage and to look at an amendment at a later stage.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Items subject to legal privilege
Keir Starmer
I beg to move amendment 49, in clause 25, page 19, line 22, after “items”, insert “presumptively”.
The Chair
With this it will be convenient to discuss the following:
Amendment 51, in clause 25, page 19, line 31, leave out paragraph (3)(a) and insert—
“(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the interception, or (in the case of a targeted examination warrant) selection for examination, of those items, and”.
Amendment 82, in clause 37, page 31, line 7, at end insert—
“(3) But this section does not authorise interception of a communication containing items presumptively subject to legal privilege.”
Amendment 75, in clause 42, page 33, line 30, at end insert—
“(4) But this section, nor section 43 or section 44, do not authorise interception of a communication containing items presumptively subject to legal privilege.”
Amendment 76, in clause 45, page 35, line 9, at end insert—
“(5) But this section does not authorise interception of a communication containing items subject to legal privilege.”
Amendment 81, in clause 225, page 177, line 6, at end insert—
“presumptively subject to legal privilege”, in relation to an item, means that disregarding any question of criminal purpose, the item falls to be treated as subject to legal privilege;”.
New clause 2—Items subject to legal privilege—
“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege; or
(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.
(2) For the purposes of subsection (1), legal privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice, or
(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(3) Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.
(4) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.
(5) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—
(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;
(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made;
(c) that the material concerned is likely to be relevant evidence;
(d) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail; and
(e) it is in the public interest that the warrant is granted, having regard to the—
(i) benefit likely to accrue to the investigation and prosecution if the information is accessed,
(ii) the importance of the prosecution, or
(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.
(6) A code of practice issued under Schedule 6 must contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1); and
(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”
This new clause is intended to replace existing clause 25 and seeks to clarify the approach to legal privilege in line with existing law.
New clause 6—Items subject to legal privilege—
“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—
(a) a communication, insofar as the communication consists of matters subject to legal privilege;
(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.
(2) For the purposes of subsection (1), legal privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice; or
(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.
(3) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.
(4) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—
(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;
(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made; and
(c) that the material concerned is likely to be relevant evidence;
(d) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;
(e) it is in the public interest that the warrant is granted, having regard to the—
(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed;
(ii) the importance of the prosecution; and
(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.
(5) A code of practice issued under Schedule 6 must contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);
(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”
This new clause clarifies the approach to legal professional privilege on the face of the Bill and brings it into line with the spirit of existing case law, the common law and PACE.
Keir Starmer
We come to this late, but the provision is an important one. I will try to be brief and to the point. The clause deals with legal privilege. I acknowledge that the Government have responded to the various recommendations so far, setting the provision out in a different form in the Bill.
There are, I am afraid, still problems. I have been discussing those with the Bar Council, which is concerned about the form in which the provision appears in the Bill. I invite the Committee to look at the clause. Subsections (1), (2) and (3) deal with a situation in which the purpose of an intercept warrant is to target material subject to legal privilege and, correspondingly, in relation to targeted examination. Those subsections are relevant to the targeting of material subject to legal privileges. Subsections (4), (5), (6) and (7) serve a slightly different purpose, which is the position if a warrant, although not targeted, may be likely to include items subject to legal privilege.
The difficulty with the first three subsections—this is the strong view of the Bar Council, borne out in the code of practice itself—is that
“Legal privilege does not apply to communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably).”
If the communication furthers a criminal purpose, legal privilege simply does not apply. If left unamended, subsections (1), (2) and (3) would allow the targeting of legally privileged material which does not further a criminal purpose, and therefore falls outside the limits of legal privilege itself.
The Bar Council’s point, which is a good one, is that once legal privilege is properly understood it becomes clear that legally privileged material should not be targeted. If the argument is that we may have to target communications between a lawyer and client in which they further a crime—I accept that there have been examples of that—in those circumstances the material has already lost its legal privilege and therefore does not need to be targeted. In fact, something that is not legally privileged is being targeted. It is a very serious point, and new clause 2 was intended to help set out what the Bar Council suggests is a better formulation of clause 25. Subsection (3) of new clause 2 makes it clear that:
“Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.”
It approaches it on that basis in order to meet the argument that you cannot ring-fence something which, under the cloak of legal privilege, is in fact furthering a criminal intent. If that is right, it logically follows that clause 25(1), (2) and (3) should not stand as they are currently drafted. New clause 2 is essentially an alternative provision.
In other words, the test in 25(3) of “exceptional and compelling circumstances” is on the one hand welcome, though it is not welcome in a clause that targets legally privileged material that should not be targeted for the reasons I have outlined.
Lucy Frazer
I hope the hon. Gentleman will forgive me for thinking of this as I speak. Is there a risk that we could be unclear as to whether a communication is subject to legal privilege, and think that it is in furtherance of a criminal offence, and then it turns out not to have been? Is there a loophole or lacuna in the legislation that does not cover that eventuality?
Keir Starmer
There is. That is a very good point, and it is one that I have discussed with the Bar Council. In those circumstances, what is being targeted is material that is not legally privileged, though there might be something that is legally privileged within it. There should be safeguards put around that, and I readily accept that examples will arise, probably also in the bulk powers, in which, although the intention is not to target legally privileged material, it is very difficult to have a warrant which does not run the risk.
An example would be when there is a suspicion that a lawyer and client may be involved in some activity that would take the communication outside of legal privilege, but it is impossible to say at what point of the conversation or exchange it loses its legal privilege. That is an obvious example. The answer that the Bar Council gives to that, and that I agree with, is that in those circumstances, rather than having a warrant to target the legally privileged material, there is a regime that recognises that it may be that, when targeting what can legitimately be targeted—namely, the part of the communication that has lost its privilege—there is a risk that privileged communications are incidentally picked up. There should be a provision for dealing with that material and its disclosure.
The powerful point about subsections (1), (2) and (3) is that it is wrong, in principle, to target legally privileged material. It is possible to have a warrant that runs the risk, with a separate set of safeguards to ensure that, if the risk materialises—as it will in some cases—there are provisions for ring-fencing, safeguarding, and not disclosing that material. That is the intention behind the Bar Council amendment.
It may be that further tweaks or improvements can be made, but that is an important point of principle that I invite the Solicitor General to take away and consider. A clause that satisfied the Bar Council in terms of the legal protection of this important privilege would be a prize worth having. Although the Bar Council recognises, as I do, the movement that the Government have made here, they simply have not got this right, for the reasons that I have outlined.
Subsections (4), (5), (6) and (7) are focused, in a sense, on communications that are likely to include items of legal privilege, such as a warrant that touches on a solicitor or lawyer communicating with clients, where it is thought that privilege has been lost but also elements where it has not been lost. In those circumstances, the Bar Council’s view and my view is that what is set out is again simply not strong enough, because there is no test or special provision.
New clause 2 is a comprehensive clause that would deal with that issue. In a sense, it goes with amendment 80, which amends a much later provision. It is intended to tidy up and clarify what the Bar Council says properly represents legal privilege and a regime for protecting it.
Suella Fernandes
Does the hon. and learned Gentleman not think that there is a special level of safeguard incorporated in the clause? A higher bar needs to be overcome. Only in “exceptional and compelling circumstances” will privilege be circumvented. Is that not a high standard to meet?
Keir Starmer
I accept that it is a high standard to meet, but it is focused on the wrong target. If it is wrong in principle to target legally privileged material on the basis that that material might involve communications that further crime, on a proper understanding, that material has already lost its legal privilege. Having a higher test to target something that has not lost its legal privilege is a good thing, but it is not enough. Material that has not lost its legal privilege should not be targeted, because it is in fact not furthering crime. The proper way to deal with it is to recognise that what one really wants to target is communications that have lost their privilege. However, there is a risk of including—unintentionally, because one does not want to target it—other material, and that requires a different approach and a different regime. That is really the point. It is good to have a threshold, but the threshold does not work within the confines of this scheme.
I urge the Solicitor General to view the clause in that light and to reflect again on it. A lot of work has been done to try to get it into a better state, but that has not met with the approval of the Bar Council and, following analysis and discussion with the council, I can see why. New clause 2 is the council’s attempt to get it right. It has spent a lot of time on it and is very concerned about it. I invite the Minister to reflect again and commit to looking again at the clause, perhaps with us and the Bar Council, to try to get a clause that meets with the approval of everyone concerned. If that can be achieved, it will be a prize worth having; if it cannot, it will be a waste of a bit of time on a good cause.
The Solicitor General
Although it comes at a late hour, this is an important debate. We have come a long way on this issue. There was silence as to the presence of legal professional privilege in the draft Bill. The Government have rightly listened to the evidence and have now made important amendments to clause 25.
Keir Starmer
I and the Bar Council would like an example of that. If it is being advanced that even where the iniquity exception is not made out—in other words, it is properly legally privileged communications—there none the less may be circumstances in which the privilege yields under the Bill. We need to be clear about the circumstances he envisages. In a sense, he is suggesting that the communications can be targeted once they have lost their quality in cases where the iniquity exception is not made out—in other words, where it is a proper professional exchange between lawyer and client, fully protected until now. We had better have an example. The Bar Council will be very interested, because this issue goes to the heart of the privilege.
The Solicitor General
I know that the hon. and learned Gentleman has looked at the code, and the example I will give him is the example in the code under paragraph 8.37. I will read it into the record, because this is an important point. The example is:
“An intelligence agency may need to deliberately target legally privileged communications where the legal consultation might yield intelligence that could prevent harm to a potential victim or victims. For example, if they have intelligence to suggest that an individual is about to conduct a terrorist attack and the consultation may reveal information that could assist in averting the attack (e.g. by revealing details about the location and movements of the individual) then they might want to target the legally privileged communications.”
In other words, that is not the furtherance of a crime, because the legal adviser is not hearing or in any way participating in the outline of a plan. There might be information in there that seems to the adviser to be innocent information about the suspected terrorist living in a particular location or associating with particular individuals, but which, because of the surrounding intelligence in the case, may well give a basis for the intelligence agency to target that individual, because the information means more to the agency.
Keir Starmer
The Minister points to an example that I have discussed with the Bar Council. I must put its view on the record, which is that in those circumstances, there would be an offence if someone was not providing the relevant information about that sort of incident to other than the lawyer. We may need to take this discussion forward in an exchange of letters, with the benefit of what the Bar Council has to say, but in its view that is not a good example for what would be an exceptional incursion into legal privilege. That is why I urge the Minister, rather than batting this back at this stage, to take the opportunity to have further discussions with the Bar Council to get this provision into a form that is acceptable to all.
The Solicitor General
I am always happy to discuss matters with the Bar Council. As one of the leaders of the Bar, the hon. and learned Gentleman knows that I go to regular Bar Council meetings. I was with it on Saturday, and I listen carefully to what my friends and colleagues at the Bar have to say.
However, the example I am giving explains the situation. There might be information that is entirely innocuous to the lawyer. Let us say that there is a consultation happening. The lawyer might ask a few questions about the address and associates of the person that do not, to him or her, disclose an offence being committed, but which might, in the wider context, provide the security and intelligence authorities with evidential leads that build a wider picture of which the lawyer will be unaware. That is not the furtherance of a crime; it is innocent. What would be innocuous information to the lawyer might mean something more, because a wider context might give the appropriate agency the grounds upon which it could then make its application for warrantry.
There is a distinction. I am not saying that it will be commonplace—far from it. That is why we have worded the terms of the clause very carefully. We talk about “exceptional and compelling circumstances”. I cannot imagine a higher threshold for an applicant to meet than those words.
An additional attraction is that, for the purposes of this legislation, we do not try to define what is meant by legal professional privilege. It is a bit like the argument about parliamentary privilege—the more we try to modernise and define it, the more it ceases to exist as a meaningful concept. One has to be careful about using vehicles like the Bill to define what is a very wide-ranging principle that applies to myriad circumstances involving lawyers and their clients. Although I am in the spirit of dialogue, that is why I would strongly hesitate before adopting the amendments.
Victoria Atkins
I have listened, with great care, to the submissions made by the hon. and learned Member for Holborn and St Pancras, and I have some sympathy with the position that he has put forward. One of the issues that has consoled me is that any such warrants that are proposed will have to meet the threshold of the double lock, namely the Home Secretary and the judicial commissioner, who, I imagine, will be very careful to protect legal professional privilege. Is my understanding correct?
The Solicitor General
My hon. Friend sums it up admirably. We have taken a different approach from RIPA, and rightly so. We have listened to the concerns expressed by the wider community, not just members of the profession, and are fully cognisant of the importance of legal professional privilege. It was part of my daily professional life for nearly 20 years so, as a Minister and as a lawyer, I fully understand its importance. Therefore, I hope that the example I have given gives an important insight into what we regard as “exceptional and compelling circumstances”. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.
Keir Starmer
I will not take much time. The Solicitor General prays in aid the dangers of over-defining, but the danger of the clause is that it will cut across legal professional privilege. Let us be realistic about what that means: wire taps to listen to privileged legal communications where the iniquity exception does not apply. A lawyer will never again be able to say that a communication—even one within the proper limits of a legal communication—is protected, because there could be no such guarantee. There will always be the possibility that it will not be protected. At the moment, it can be said that as long as it does not fall into the inequity exception, a communication is protected. In the other examples that have been used, it would not be interceptors; it would be bugs in cells. In the end, that is the road that will be opened by this proposal. A lawyer believes that they are having a confidential discussion on proper terms and appropriately with their client, yet that is intercepted. That is why I think the Bar Council feels so strongly about it.
Of course, there is a danger in defining legal professional privilege, but there is a much greater danger in getting to a position where a lawyer can never again say, “I guarantee that, as long as it is within limits, this is a protected communication.” That is at the heart of the Bar Council’s concern. I have said all I need to say. That is the problem.
The Solicitor General
We have to be careful about this. We have prison rules, for example. The hon. and learned Gentleman and I know that there are already certain prescribed circumstances and scenarios that exist. I am not advocating a coach-and-horses approach that can be taken by authorities who have a cavalier regard for LPP. This is a very prescribed exception. The words “exceptional and compelling” are strong. He paints a nightmare scenario—I know that he does so with genuine concern for a privilege that he and I hold dear—but I think that we are getting the balance right and that what he envisages will not come to pass.
Lucy Frazer
I am grateful to the hon. and learned Gentleman for standing to give way. I was trying to think of circumstances in which legal professional privilege—the relationship between the lawyer and their client—might not be as sacrosanct as the client might expect. For example, if the lawyer considers that there is a risk that their client is involved in money laundering, even if they are not, there are circumstances in which that right is circumscribed. That might not be a perfect example, but we are in the territory of there being the risk of great harm or wrongdoing and evidence that persists of that.
Keir Starmer
I am grateful for the intervention, and I recognise that point. The concern is that, if passed in this form, the Bill will allow interception where there is no question of the inequity exception. Perfectly lawful, proper, appropriate communications between lawyer and client, which are fully protected and recognised in all other circumstances, would come within the scope of an intercept warrant.
At this stage—particularly at this hour—I will not press the point. I urge the Solicitor General to keep at least a residual open mind, so that if a better version of the new clause can be tabled at a later stage, which meets some of the concerns he has outlined, he might look at the proposal again. As I say, this is an issue of real concern to the profession. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 25 agreed to.
Clauses 26 to 29 agreed to.
Ordered, That further consideration be now adjourned. —(Simon Kirby.)
Investigatory Powers Bill (Fifth sitting)
Thursday 14th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 April 2016 - (14 Apr 2016)
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Chair
Before we continue with line-by-line scrutiny of the Bill, I have a number of announcements to make. First, some amendments appear as starred amendments on this morning’s notice of amendments. One group—amendments 252 to 256, concerning clauses 34 to 36—were tabled on time, but there was an error and an oversight. They have been published today, however, and I have decided to use my discretion and select them as a single group this morning.
Amendments 250 and 251 to clause 30 are also starred. They are not new amendments, but have been disaggregated from amendment 94, which has been shortened. They will be marshalled for debate on clause 30, which they seek to amend, and have been selected in the first group of amendments.
New clause 7 is also starred but is not new and was previously tabled as amendment 163. The thrust of the new clause is exactly the same and I have selected the clause for debate as part of the group led by amendment 164.
Finally, I have spoken to the Minister about this, but I want to make it clear to the Committee that he can move that a clause stand part of the Bill formally, but that does not shut down debate. If other members of the Committee wish to debate it, they can do so, whether or not it is moved formally, and the Minister will have the right to reply before I put the question. I hope that is helpful to Members.
Clause 30
Modification of warrants
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 68, in clause 30, page 23, line 41, leave out paragraph (5)(c).
The Chair
With this it will be convenient to discuss the following:
Amendment 69, in clause 30, page 24, line 5, leave out paragraphs (6)(d) and (e).
Amendment 94, in clause 30, page 24, line 8, leave out subsection (7)
This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.
Amendment 70, in clause 30, page 24, line 8, leave out subsections (7) and (8).
Amendment 95, in clause 30, page 24, line 32, after “major”, insert “or minor”.
Amendment 96, in clause 30, page 24, line 32, leave out from “warrant” to end of line 33 and insert—
“pursuant to subsection (5) or (6), if a Judicial Commissioner determines”.
Amendment 71, in clause 30, page 24, line 46, leave out subsection (11) and insert—
“(11) In any case where a major modification of a warrant is sought under paragraph (4)(a), section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify a warrant as it applies in relation to a decision to issue a warrant.
(11A) In a case where any modification under subsection (4) is sought to a warrant to which section 24 (Members of Parliament etc.) or section 25 (Items subject to legal privilege) applies, section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify the warrant as it applies in relation to a decision to issue the warrant.”
Amendment 250, in clause 30, page 24, line 46, leave out subsection (11)
This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.
Amendment 72, in clause 30, page 25, line 3, leave out subsection (12).
Amendment 251, in clause 30, page 25, line 7, leave out subsection (13).
This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.
Amendment 74, in clause 31, page 26, line 13, at end insert—
“(8) Where, by virtue of section 30(11), section 25 (items subject to legal privilege) applies in relation to the making of a major modification of a warrant pursuant to section 30(7), this section applies as if each reference in subsections (2), (5) and (6) to a designated senior official were a reference to a Judicial Commissioner.”
Keir Starmer
In the light of the statement you have just made, Mr Owen, I want to thank the Bill Office team for the hard work they have done on tracing down the amendments—particularly amendments 252 to 256—so that they can be starred for today’s purposes. They are working extremely hard and we are all really grateful. I also thank the Government, because although some of these amendments do not add a great deal to other amendments that have been tabled, amendments 252 to 256 are substantive. The Government could have taken the view that they have not had sufficient time to prepare for them, through no fault of their own. I also thank you, Mr Owen, for starring them and allowing us to debate them so that we can move on through the Bill today.
Let me turn to the amendments to clause 30, which deals with modifications. As you will remember, Mr Owen, on Tuesday we debated at some length the necessity and proportionality tests when a warrant is to be issued, as well as the role of the Secretary of State, the scrutiny that the Secretary of State applies to a warrant and the role of the judicial commissioners. Although there was disagreement between us on who should exercise precisely which function, there was agreement that there should be intense scrutiny at all stages to ensure that the warrant is necessary and proportionate and correctly identifies the people, premises and operations to which it relates.
That can be seen in clause 15(1) and (2), which we touched on on Tuesday and which relate to the subject matter of warrants. Clause 15(1) states that a warrant may relate to
“a particular person or organisation”
or
“a single set of premises”.
Then there is the thematic targeted interception warrant in clause 15(2), which sets out the group of persons who could be identified.
Clause 27 complements clause 15 by setting out the requirements that must be met by the warrants. I draw attention to clause 27, because clause 30, dealing with modification procedures, relates back to it. The requirements that must be met under clause 27 are as follows. A warrant that relates to a particular person or organisation must name or describe that person or organisation. A warrant that relates to a group of persons related by a purpose or activity must describe the purpose or activity. A warrant that applies to more than one organisation must describe the investigation and name or describe the persons involved. Therefore, on the face of it, there is scrutiny in the process. Then there is a requirement to set out in some detail on the face of the warrant what it actually relates to—the people, activity and premises, as set out in subsections (3), (4) and (5) of clause 27.
Clause 27(8) sets out that
“Where…a targeted interception warrant or mutual assistance warrant authorises or requires the interception of communications…or…a targeted examination warrant authorises the selection of the content…the warrant must specify the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communications.”
That is important because it sets out the higher level of protection for content, either under a targeted intercept warrant itself or under an examination warrant on the back of a bulk warrant. The requirements under clause 27 sit with all the scrutiny, checks and safeguards of the double-lock mechanism. They are all additional important safeguards.
We then get to clause 30, which states:
“The provisions of a warrant issued under this Chapter may be modified at any time by an instrument issued by the person making the modification.”
This is to modify any of the warrants I have just described, which will have set out, on the face of the warrant, the details of the application of the warrant. The modifications that can be made are set out under clause 30(2)(a) and (b). Subsection (2)(a) relates to adding, varying or removing names, descriptions and premises. Those are the three subsets under clause 27—in subsections (3), (4) and (5)—which are all required. Clause 30(2)(b) relates to the factors that are relevant to content warrants, either as a targeted content warrant or as an examination warrant following on from a bulk one.
Clause 30(2) states:
“The only modifications that may be made under this section are”,
suggesting that it is rather limiting. However, if we go back to clause 27, I think—I will be corrected if I am wrong—that the only thing that is left out in relation to modification is the testing and training activities. Everything else is up for grabs in relation to modification. It is “only” those provisions, but what is not said is that that is practically everything that will ever be on the face of any warrant, save for a training warrant and a testing warrant. Therefore, the scope of modification is very wide.
Then there is a subdivision in clause 30(4) between “major” modifications and “other” modifications. That does not quite sit with clause 30(2), but a major modification is essentially clause 30(2)(a), but without the removing: if a name is removed, it is not a major modification, but if a name, description, organisation or premises is added or varied, that is a major modification. Everything else, which is what is left in clause (30)(2)(a) and the factors in clause 27(8), is described as “minor”.
I want to trace through the journey of a modification, starting with a major modification. These are considered to be the most important modifications. The first issue that crops up is who can make a modification. Under clause 30(5), it is the Secretary of State, a member of the Scottish Government in certain cases or a senior official. The first, obvious point is that there is no double lock. There is no reference to a judicial commissioner. There is no notification requirement and no requirement for the judicial commissioner to consider the warrant; it simply is the Secretary of State and this additional senior official in certain circumstances.
I should mention in passing that a major modification can even be made in an urgent case by someone described in clause 30(6)(d) and (e) as
“the person to whom the warrant is addressed, or…a person who holds a senior position in the same public authority”.
That is in addition to a senior official. In an urgent case, they can add a name, a premises or an organisation.
We then move on to the purposes. For major modifications, we jump straight to clause 30(9), where I acknowledge there is a necessity and proportionality test—the decision maker has to think about the necessity and proportionality of the amendment. Where the decision is made by a senior official rather than the Secretary of State, there is a duty to notify the Secretary of State. That is it for major modifications. The Secretary of State—there is separate provision for Scotland—or a senior official makes the decision on necessity and proportionality grounds. They can add practically anything that could have been on the face of the warrant, apart from testing and training. I read into the duty to notify the Secretary of State that by implication she must consent to it, because otherwise she would presumably reverse the decision, although that is not expressed on the face of the Bill.
There is no duty to go to a judicial commissioner, no reference to a judicial commissioner and no notification to a judicial commissioner of the modification, which can be very wide. A warrant could be issued on day one to cover a given individual. On day two, three or four, another individual, premises or organisation can be added without the need to go through the double-lock process. That cuts so far through the safeguards as to make them practically meaningless in any case that comes up for modification.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. and learned Gentleman will have seen David Anderson’s supplementary written evidence. In relation to clause 30, he wrote:
“New persons, premises or devices…may be added on the say-so of a senior official, without troubling…the Judicial Commissioner…I adhere to my opinion that any such additions should be approved by the Judicial Commissioner.”
Is that the general thrust of the hon. and learned Gentleman’s amendments?
Keir Starmer
It is, and it is why not only David Anderson, but many others have expressed concern about the provision. Stepping back for a minute, even if a sensible case can be made for a modification process, a modification process that allows anything on the face of the warrant to be amended—save for training and testing—without the need for that modification to go through the double lock cuts so far through the whole point of the double lock. Through modification, everything that it was feared would happen without a double lock can take place.
The only other thing relevant to a major modification is subsection (15), which states:
“Nothing in this section applies in relation to modifying the provisions of a warrant in a way which does not affect the conduct authorised”.
That is not a limiting, but an excepting subsection.
I want in particular to highlight clause 30(11). On Tuesday we debated the issue of Members of Parliament and legal privilege. Although there was a difference of approach among members of the Committee, there was a general consensus that special protection is needed when it comes to MPs’ communications and legal professional privilege, yet subsection (11) states:
“Sections 24 (Members of Parliament etc.) and 25…apply in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as they apply in relation to a decision to issue a warrant; and accordingly where section 24 applies only the Secretary of State may make the modification.”
Two things are clear from that provision. First, for minor modifications to warrants that touch on MPs’ communications and for minor modifications that deal with legal professional privilege, the decision does not need to be made by the Secretary of State and it does not go to a judicial commissioner. Secondly, clauses 24 and 25, which are specifically referenced in clause 11, do not require the judicial commissioner to be involved.
If I am wrong, I will stand corrected right now, but on any reading of that, I cannot see how a modification to a warrant that brings it within the otherwise special protection for MPs and/or legal professional privilege is required to be put back through the judicial commissioner. I invite the Minister to correct me on this, because otherwise it is a worry that a warrant could be modified and taken into that otherwise protected territory without any notion of a double lock and simply the safeguard of having the Secretary of State making the decision, not a senior official.
The Solicitor General (Robert Buckland)
I am sure that in due course we will outline where we are with regard to the role, or lack thereof, of the commissioner. With regard to a warrant involving a Member of Parliament, if that relates to a single individual—let us say a single Member of Parliament—that cannot be modified to have other people added in that category. There would have to be a fresh application relating to separate names. That is an important caveat that deals with a lot of the hon. and learned Gentleman’s genuine concern.
Keir Starmer
I am grateful for that intervention; I am happy to be intervened on. I think that comes from paragraph 5.61 of the code, on page 33, which says:
“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”
Slightly further down it says:
“Whilst this can be subject to modification, it cannot be modified to move beyond or outside of the scope of the original thematic warrant.”
This is an important point. First, something as important as that needs to be in statute—that is critical. In other words, if someone has a warrant for person A on a Monday and they want to add person B on a Tuesday, they must get a new warrant, not modify the existing warrant. That should be in statute, not in a code. There is obviously the question of what goes in the code, but that safeguard is important. If, for an example, a warrant touched on A on a Monday and could be modified in a way that might touch on an MP or go into prohibited legal privilege on a Tuesday, that requires more than a paragraph in a code of practice, because it is really important.
Again, I invite an intervention, but the code says:
“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”
That is a carefully drafted sentence. What is the position when there is a targeted warrant that relates to two people and the idea is to add one, and that one is an MP or a solicitor? I invite an intervention because that is not covered by the code’s wording.
The Solicitor General
I think I can assist. Perhaps there is a bit of a misconception about the current situation. If a warrant says, let us say, person A and others are known, the Regulation of Investigatory Powers Act 2000 does not require an amendment to the warrant even if another person becomes known and therefore becomes a potential target. We are tightening that up and making it a requirement that if person B becomes known, even though the ambit of the warrant at the moment covers others unknown, there has to be an amendment where we know the identity of individuals. The answer to the hon. and learned Gentleman’s question is that it can only be amended if there is an unknown part to the original warrant, as opposed to specific names.
Keir Starmer
I am grateful for that intervention. This is an improvement on RIPA, but that is setting the bar pretty low when it comes to modifications.
The Solicitor General
Let us not forget that modifications to add MPs can only be authorised by the Secretary of State. That is another important safeguard. I would not pooh-pooh what we are doing by saying that we are improving on RIPA. This is a significant improvement from where we are.
Keir Starmer
I look forward, on Report or Third Reading, to somebody informing MPs that a modification of the warrant that includes them can be made by the Secretary of State, without the involvement of a judicial commissioner. Understandably, great play was made of the role of the judicial commissioner when colleagues on both sides of the House were concerned about their communications with constituents. They were assured that there was a double lock and that a modification could not happen without a judge looking at it as well. Somebody has to stand up, be honest with them and say, “Well, it can actually, because it can be modified to bring you within it.” There is nothing on the statute or in the code to prohibit that. That is a very serious proposition because these are not urgent modifications. They are permanent and, in many cases, slower-time modifications.
I understand that, in a fast-moving case, urgent procedures are needed and urgent modification procedures may be needed, but these include slower-time, considered, permanent modifications to a warrant. Somebody needs to tell our colleagues that they can be included in the warrant by modification, and that it starts and ends with the Secretary of State and goes nowhere near a judge. They need to know that.
Somebody also needs to address the legal privilege point because I do not think that is addressed at all on the face of clause 30 or, as far as I can see, in the modifications part of the code of practice. Again, if I am wrong about that I will be corrected. From my reading of the Bill, a modification could be made to allow intercept in the otherwise protected area of legal professional privilege. The Secretary of State has to apply the higher test—I accept that—but it will never go to a judge. A sort of comfort is being held out to lawyers that, even in the extreme case where they will be targeted, it will at least be seen by a judge. That comfort is shot through by this provision. The clause really needs to be taken away and reworked in the light of the significant flaws—that the code is not clear enough and is not the right place for protections for MPs or for legal professional privilege. That should be on the face of the statute through an appropriate amendment.
I turn to the so-called minor amendments. We must remember that although they are called minor amendments, they are not minor. Clause 27(8) is really what comes within the ambit of a minor amendment, and that is all the detail about how the content will be examined. There is a bulk warrant, which, by its very nature, hoovers up a lot of communications. Then there is an examination warrant, which is intended to be a check and balance, and that is why there is a requirement to set out how the examination warrant will work—the address, the numbers, the apparatus, and a combination of other factors and so on. That is the really important safeguard. It is the only safeguard for bulk warrants accessing content, yet all of that is deemed to be a minor amendment. The amendments to the examination warrant—which, in truth, is the most important warrant for the bulk powers after the wide bulk warrant in the first place, as this is where we are actually looking at stuff—are all deemed to be minor.
What is the route for a so-called minor amendment? Let us trace it. Who can make the decision on a minor amendment? Clause 30(6) states that a minor amendment may be made by the Secretary of State, the relevant Scottish Government Minister, a senior official, the person to whom the warrant is addressed or a person who holds a senior position in the same public authority as that person. There is no urgency requirement. Real-time, slow amendments to the way bulk warrants will be subjected to examination can be made in the ordinary, run-of-the-mill case by the person to whom the warrant is addressed—they can modify their own warrant—or by a person who holds a senior position in the same public authority as them. With no disrespect to the individuals in those positions, we have dropped a long way down the ranking when it comes to the authority for sign-off of an amendment to an examination warrant that allows my content or anyone’s content to be looked at where it has been scooped up under a bulk provision.
I am afraid it gets worse. Whereas for a major modification there is a requirement for the decision maker to look at necessity and proportionality, there is no such requirement for minor amendments. That is astonishing and very hard to justify. I will listen carefully in due course to what is said, but why is there no need on the face of the Bill to consider whether a so-called minor modification to an examination warrant in relation to bulk powers is necessary or proportionate? Subsection (9) is clearly drafted only to catch major modifications.
Consider that a minor amendment to a warrant that applies to an MP or that touches on legal professional privilege could be made by the person to whom the warrant is addressed or someone in a senior position in the same public authority. I ask Members to inform their colleagues of that. There is no requirement that a minor amendment even goes to the Secretary of State, and certainly nowhere near a judicial commissioner.
The approval mechanism in clause 31 is only for major modifications. There is a low level of authority for making minor modifications, and there is no test. If I were a senior official in the public authority, I might say, “You just asked me to make a modification. What am I supposed to take into account?” but on the face of the Bill, there is not even a test to be applied. There is no duty—again, I am happy to be corrected—to inform the Secretary of State. For major modifications, there is such a duty, but for minor ones, there is not. Someone in a senior position in a public authority can therefore make the modification and not notify the Secretary of State. There is certainly no double lock. It is no wonder the Joint Committee was so concerned about this provision, and it is no wonder so many others have raised such concerns.
Matt Warman (Boston and Skegness) (Con)
In the Joint Committee’s examination of this provision, one crucial point we raised was exactly the one the hon. and learned Gentleman raises. We were told that the crucial phrase is in clause 30(2)(a):
“adding, varying or removing the name or description of a person”.
It is the description of a person, not the person. This is about aliases for individuals; it is not about changing the individuals themselves. I wonder if he has considered that point, which the Joint Committee was assured of in its evidence.
Keir Starmer
I would be interested in the Government’s position on that, because it does not sit with what is in the code of practice. If all clause 30 intends is to say, “We thought he was called Keir Starmer; now we know he’s called Steve”—I have always wanted to be called Steve—“but the warrant applies to exactly the same person,” or, “We thought it was 137 Charlton Road; we now realise it’s 172, but it’s the same premises”, I will sit down now and invite an intervention.
Keir Starmer
No, I think the intervention is suggesting major modifications—subsection (2)(a) only applies to major modifications. That is, apart from the removing, it is the description of a major modification. If a major modification is only intended to allow the name of the same individual to be swapped—where it is appreciated that it is the same person, now called not X, but Y— that is one thing, but the code of practice then does not make much sense, because it is written on the basis that individuals are being added.
I am inviting an intervention, but I am not getting one. I would quite like one, because I would be less concerned. If this is right and that is what the Joint Committee was told—that that was the intention—then the measure clearly needs to be rewritten, which would remove a lot of concern. That is why I invite some clarification. I suspect that the non-intervention is because that understanding is not the right answer.
The Chair
Order. I gently remind the Minister that he has the opportunity to respond on behalf of the Government at the end of our debate on the group. We do not need to have a ding-dong on each point.
The Solicitor General
I will help! I thought that I had made the point clear. What we are dealing with here is major modifications, which will allow for the warrant to be amended to include the names—for example, of a kidnap gang—as they become apparent. At the moment, RIPA does not allow for that—there is no such provision. We are putting that in the Bill, so that when names become known we may amend the warrant, because we think that that is fairer and more proportionate. The warrant will have been authorised initially against all of the gang, say, but we are then providing the specificity that should have been there anyway.
The Chair
For that very reason, Minister—interventions have to be short. The debate is continuing and Keir Starmer has the Floor; then there is the opportunity to respond.
Keir Starmer
I am grateful to the Solicitor General. That was helpful, because if the previous intervention is right, a lot of my concern would be focused elsewhere and save a lot of time—but I am afraid it is not. On the face of the Bill, and consistent with the code of practice, named—[Interruption.] I want to be clear, to have clarity about what we are arguing about, because the point is a very serious one. As everyone can see, there is the real potential for all the careful checks and balances devised under the Bill to be shot through by the modification process. That is the real concern, and I think it is a shared concern, certainly in the Joint Committee, but also in other places.
To be clear, I think that the Solicitor General is accepting that the measure is not simply about re-identifying with a different name a person who is already specified on the warrant; he is suggesting that it would be used if a warrant was issued in relation to a gang of some sort, when some members are known and others become known, and a mechanism for adding them is needed. If that is what was intended, why is that not what has been written in the clause?
Clause 30, as drafted, does not limit in that way. If it did, the subheading would be “Modification of thematic warrants”, then it would state that where a thematic warrant has been issued naming a person, an organisation or whatever, and it becomes necessary to amend it, to clarify further the persons within the organisation, and so on, then that would be a much more restricted clause. That would probably have met some of the concerns of the Joint Committee and be a very different proposition, but that is not what has been drafted. In the code of practice, it is true, there are some warm words, but—
The Solicitor General
The hon. and learned Gentleman knows that the code of practice is much more than that and makes it clear that the measure is about thematic warrants. The mischief that he is worried about here is cured by the fact that if a sole named person is on the warrant, it cannot be modified to add another name; we would have to apply for a new warrant.
Keir Starmer
The question for the Minister is, if that is the purpose, why is the measure not limited to thematic warrants? It is impossible to answer that question unless one wants to keep open the option of modifying non-thematic warrants. It is a simple amendment, that the provisions of a warrant issued under whatever the relevant clause is may be modified by an instrument. In subsection (1), we could achieve exactly what the Solicitor General says is the clause’s purpose by amending it to “themed warrants”, but it has not been done, notwithstanding the concerns of the Joint Committee.
Lucy Frazer (South East Cambridgeshire) (Con)
I wonder whether the hon. and learned Gentleman’s concerns are addressed by the last five words of subsection (2)(a):
“The only modifications that may be made under this section are adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates”.
The Home Secretary, or someone else, will receive a warrant relating to a particular person, course of action or premises, and only if that warrant relates to those things could someone then be added—it must relate to the warrant itself.
Keir Starmer
I have considered that, and it is fair to say that subsection (2)(a) would not allow, in essence, a completely fresh warrant to be issued under the modification procedure. There has to be a relationship between the modification and the warrant, so someone could not say, “I want a warrant against X today, and I’ll modify it to include Y, which has nothing to do with X but it is handy to modify this warrant, as we have it before us.” There has to be a relationship, which I accept is the intention and the purpose of clause 30, but the drafting is still far too wide. What if an MP or a solicitor is involved? What if it becomes known that there is a gang and we think that X, Y and Z are involved—we do not know the others—and we then learn that one of them is talking to their solicitor? The solicitor is then related. A modification would allow something to be brought in, and there is nothing to prevent it.
With all due respect to everyone who has worked hard on clause 30, of all the clauses in the Bill it is the one that the further I went through it, the further my jaw dropped because of just how wide and unlimited it is. In an area such as this, where we are talking about safeguards, it is not enough simply to point to what are in fact limited words in the code of practice. I will not invite the Minister to do something now, but I am curious—I may have misunderstood—that paragraph 5.64 of the code says:
“Minor modifications that are made by the warrant requesting agency are valid for five working days following the date of issue unless the modification…is endorsed within that period by a senior official…on behalf of the Secretary of State. Where the modification is endorsed in this way, the modification expires upon the expiry date”.
I cannot find any reference to that anywhere in the Bill. If I am wrong, I will happily be corrected, but I do not know where that comes from. Obviously, my amendments would restructure the clause to try to make it workable, but I do not see paragraph 5.64 anywhere in the clause. It would help to have that clarified.
That brings me to the amendments, which I will address briefly. In the spirit of constructive dialogue, I have tried to propose a restructuring of the clause in a way that would narrow it while leaving a workable modification provision. My amendments are not intended to be unhelpful. Amendment 68 would leave out subsection 5(c) so that the modification for a major case sits with the Secretary of State. Amendment 69 would leave out subsections (6)(d) and (e) to cut out people below senior official level so far as minor modifications are concerned. Amendment 70 would leave out subsections (7) and (8) because they are not necessary. Amendment 71 would make it clear that, in relation to MPs and legal professional privilege, all modifications must go through a judicial commissioner—if a modification goes into a protected area, it would have to go through a judicial commissioner. Amendment 72 would leave out subsection (12) because it would no longer be relevant, as senior officials would be taken out of the equation. Amendment 74 would make it clear that certain modifications have to go through the judicial commissioner. I tabled those amendments as a serious attempt to improve clause 30, which is seriously deficient for all the reasons that I have outlined. For the Government to nod this through at this stage, without standing back and asking if they have got it right, would not be the right approach.
The Solicitor General
Although we have only heard one speaker, we have covered the ground on the issues at hand. The hon. and learned Gentleman’s points about the importance of warrantry and the involvement of commissioners are interesting and important. This is all about fine-tuning what I regard to be an important step forward from RIPA in ensuring that we do not end up undermining the vitally important world-leading double-lock system that this Government want to introduce, by allowing the system of modification to be a back-door route. I am absolutely with him on that and know that he and other members of the Committee have advanced these amendments in that spirit.
The hon. and learned Gentleman is absolutely right to set the context of this debate and talk about the three areas of thematic warrantry that we are talking about—targeted interception, targeted assistance and mutual assistance warrants. He made the point about trying to make that clear on the face of the Bill and the code of practice not being enough. I will go away and think about that, because I think it is a reasonable point to make. If it needs to be made clearer, we are only too happy to help. I want to ensure that what I am about to say is underlined and made clear; what I say in Committee will greatly help to inform those who will operate in this area in the future.
We must be clear about what can be achieved by a modification in the first place. I have already said that the introduction of the concept of major modifications is an important new safeguard in the Bill, because of the absence of references to that in RIPA. What we had with the Regulation of Investigatory Powers Act 2000 was the authorisation of warrants on a thematic basis. I have given the example of a kidnap gang; RIPA requires that if, for example, the National Crime Agency wishes to intercept the communications of members of such a gang, their telephone numbers must be added to the warrant as they become known—not their names and identities, just that information. I do not think that is good enough and that is why that particular oversight and anomaly—I will be generous in that respect—needs to be corrected, which is what the Bill does. The code of practice makes it clear that names can only be added to a warrant when they are within the scope of the original warrant. For example, the name of a kidnapper could be added to a warrant that relates to a kidnap gang.
Keir Starmer
Is there a reason why paragraph 5.61 states that a
“targeted warrant that relates to just one specified person, organisation… cannot be modified”,
which is pregnant with the idea that there is a different position when it is not just one? Was that a carefully drafted sentence that means exactly what it says, in which case what the hon. and learned Gentleman has just said has limited it, or was a wider application intended?
The Solicitor General
I do not think it was. I can give an example; let us say you and I are named on a warrant—God forbid—then that is a restricted warrant. There is no wriggle room. It is a bit like a conspiracy, where we might plead a conspiracy between A and B and others are known, which is perfectly permissible and very often the case in a conspiracy. But if it was a much more limited warrant naming you, me and perhaps one other named person, that does not give space to use the modification procedure to add another name because it has already been limited in its terms of reference.
Keir Starmer
I understand the Solicitor General’s point. However, let us say that there was a warrant that named him and me, and a third person was then identified as being in league with us, whatever we were believed to be doing. What provision in the Bill or sentence in the code would actually prevent a modification to add that person? The Bill does not; paragraph 5.61 does not. The scheme that the Solicitor General describes is not the scheme in the Bill and the code. That is the problem.
The Chair
Before you continue, Solicitor General, let me remind you that when you say “you”, you are making reference to me, and I am impartial in this discussion.
The Solicitor General
You are right, Mr Owen; I stand corrected. I have lived my life speaking in the third person. I do not know why I—
The Solicitor General
That is the thing. The hon. Gentleman and I had this problem in a previous Bill Committee—I think I referred to the ministerial Bill team as “those who instruct me”. I have not made that mistake yet, but that is the path I am being led down.
The Solicitor General
We have not got to that stage yet, Mr Owen. One day, perhaps I will be entitled to address you in those terms, but not yet.
The Solicitor General
Let me come back to the point. I disagree with the shadow Minister; I think the language is clear. I want to make it clear, on the record, that we do not seek, through the code of practice or through any sleight of hand in the drafting, to elide or blur divisions so that we can somehow get round the problem. If he and I were named on a warrant, another warrant would be needed in order to add another person, because the original warrant was targeted at named individuals: it did not have “and others unknown”. That is why we have introduced this provision to improve the position.
Joanna Cherry
Does it not ultimately boil down to the statutory interpretation of subsection (2)(a)? The Solicitor General, who is a very distinguished lawyer, considers that it does not permit adding a new person. David Anderson QC, an equally distinguished lawyer, has stated in written evidence that he considers it does. The shadow Minister, also a distinguished lawyer, has argued eloquently that he does not believe that the Bill or the code prevent adding a new person. What is required from the Government is absolute clarity, because of the wide ambit of these powers.
The Solicitor General
I am grateful to the hon. and learned Lady. I am not saying that another name cannot be added. With a wider original warrant that says “Persons A, B and others unknown”, of course an extra name can be added. If the warrant’s original terms of reference are narrow—if they just include A and B—adding person C requires applying for a new warrant. With the greatest respect, I cannot make it any plainer or clearer than that. An ordinary warrant cannot be turned into a targeted, thematic warrant; that is the point. If a new warrant is needed, it must be applied for, and then the double lock will work.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Will that not be an incentive to make all warrants wide? The Solicitor General is saying that, when the original warrant is narrow, additional warrants will be needed, but when it is wide, names can be added.
The Solicitor General
The hon. Gentleman makes an extremely good point. That is why we are putting clause 30 in—because there is a danger, under the existing legislation, that a warrant can be drafted quite widely without having to come back and amend it in order to add extra names. I take his point, but I do not believe the clause will create a perverse incentive; on the contrary, I think it is vital. For those who draft the terms of the warrants, it will focus their minds on getting it right in the first place, so that we do not end up with the sort of mischief that he quite rightly warns about.
Jo Stevens (Cardiff Central) (Lab)
If that is so important—we want to make an improvement—why can we not have what the hon. and learned Lady is asking for, which is some clarity? That would improve what is clearly a defective clause.
The Solicitor General
I take issue with the hon. Lady’s assertion that the clause is defective. I do not think it is. There are one or two other points that I was already going to reflect on, and I will come to them later in my speech.
Let us just come back to the point that I know the hon. Lady wanted to make. If we end up with an original application that is too wide, it will not get through the double lock, because the commissioner will say, “Hold on. This is neither necessary nor proportionate. It doesn’t pass the test of review. Sorry, Secretary of State, you’ve got it wrong.” That is the whole thing that we are in danger of forgetting. I can see that the hon. and learned Member for Holborn and St Pancras is desperate to get in, so I will give way.
Keir Starmer
I really am desperate, because I want—if possible—to have an answer to the question that I put before, which is this: if what the Solicitor General is now saying is right, why does clause 30 apply to a section 15(1) warrant, because that simply does not come within the formulation?
The Solicitor General
What I would say to the hon. and learned Gentleman is that I am afraid we are forgetting the context. The mischief that he wants to deal with is that somehow an applicant for a warrant has got something in through the back door—it is too loose, too wide, and modification therefore becomes, in effect, a way of getting round the whole system. I do not believe, given my understanding of both the code of practice as drafted and of the proposed legislation as drafted, that we will get near to that nightmare scenario.
A section 15 warrant can be about an organisation. The point that I am seeking to make is that we are already in the realms of thematics, and therefore if someone has a warrant that has been drafted specifically, the process must be started again if they want to include other individuals.
May I deal with the question of the ability to modify warrants themselves? I do not think anybody is saying there should not be an ability to modify warrants; that was not part of the recommendations of any of the Committees that we know about. Also, of course, such a change would be a very significant reduction in the operational effectiveness of the warrantry process. It would mean, for example, that it would be necessary to seek new warrants each and every time it was identified that an intercepted target got a new telephone or a new phone number. I am afraid that would slow down the process, and we think there is a significant danger that investigative and intelligence opportunities would be lost.
I am not accusing anybody on this Committee of wanting to do anything to endanger an investigation or indeed lives, but we have got to think about this issue in that context. Therefore, getting the balance right is quite clearly what we all want to do.
Suella Fernandes (Fareham) (Con)
I sat on the Joint Committee that took evidence from the professionals on the front line, so I know that that very point was emphasised time and again. To quote some of the senior police officers, they are struggling to keep up with the serious criminals and the terrorists, who change their numbers and set up new email addresses and new technological addresses and identities. It is absolutely vital that we do not tie the hands of the police even further.
The Solicitor General
I thank my hon. Friend for the work she did with other colleagues on that important Committee. Of course, the context is that applications will be made on the basis of a warrant that has itself already gone through the double-lock procedure and that has already passed the tests that we know will be applied—that it is necessary and proportionate in the particular context of the case that is being dealt with.
Victoria Atkins (Louth and Horncastle) (Con)
I wanted to emphasise that point. If a warrant has in the first instance been granted, it has met the tests of necessity and proportionality, and if a telephone number attributed to a person is added, it seems to me that the purpose of the warrant that was originally granted by the Home Secretary and the judicial commissioner does not change. Am I correct in my understanding of that?
The Solicitor General
My hon. Friend is absolutely right, and to try to manipulate this process to undermine that important procedure would be immediately spotted as a misuse of the processes and the safeguards that we are incorporating into this Bill.
I want to deal with the practicalities because, tempting though it is to impose a requirement on a judicial commissioner to authorise the day-to-day or sometimes minute-by-minute tactical operation of a warrant, it would be unnecessary and operationally damaging. There must be an element of agility when operating the system of investigation and there is real concern that we would fail to do the job of detecting crime and making sure the interests of everyone we represent are protected.
Ordinarily, such modifications will be made by a senior official in the warrant-granting Department, but when, for example, the identity of a gang member becomes apparent only in the middle of the night, it is right that the intercepting agency should be able to make the modification. That deals with the point about the fast-moving threat and the immediacy of the situation.
I will deal with as many as possible of the points the hon. and learned Gentleman raised, starting with the minor rather than major modifications in amendment 69. The amendment would prevent either the head of an agency or a senior official within that agency from making a minor amendment. We are dealing with minor modifications relating to adding a new communication address for warranted targets. An example is MI5 discovering a new mobile telephone number for a warranted target who is plotting to kill someone. The Bill enables the intercepting agency—MI5 in this case—to make the minor modification to the warrant, which will have been through the double-lock procedure, and to add that new mobile number. The danger of the amendment is that it would remove the ability to act swiftly to get coverage of the new subject’s communications. With respect, I do not think it is necessary because the Secretary of State and the judicial commissioner will already have considered the necessity and proportionality of targeting interception against the individual. I will not repeat the point, but it is important for public safety.
On parliamentary and legal privilege, I have already indicated that a major modification would not be sought to a warrant against a Member of Parliament or in relation to any warrant that names a specific individual. The code of practice makes it crystal clear that major modifications can be made only to warrants that apply to a group of persons or an organisation.
Keir Starmer
I am grateful for the way the Solicitor General is explaining how the Government intend the modifications to apply. He says they would not be used in that way for legal professional privilege and Members of Parliament, but he cannot say they could not be. If I have missed it, I will sit down sharpish, but I do not think there is anything on legal professional privilege or MPs in the modification parts of the code of practice. It is silent on that. There is no guidance.
The Solicitor General
What I am trying to do is to explain that there is no difference for any member of the public. If the warrant is specifically named, it cannot, as I have explained, use the modification procedure to try to catch other people, whether journalists, Members of Parliament or lawyers. Rather than constantly seeking carve-outs, it is far better to have a general principle about specificity and the danger that the hon. Member for Paisley and Renfrewshire North raised.
Simon Hoare (North Dorset) (Con)
So that the position is clear in my mind—I am not entirely sure about it—is the Solicitor General saying that, if new people are added to a warrant without a fresh warrant being applied for, they would have to be related to the event, occasion or surveillance that the original warrant was about? Is it correct that 32 new people from different parts of the country could not just be added if they were not linked to the matters for which the warrant was given?
The Solicitor General
That is right. The word “thematic” gives it away. I am afraid it is clear that the sort of scenario my hon. Friend paints is just not one that would be entertained in the initial application to the Secretary of State and the judicial commissioner.
Victoria Atkins
Am I correct in understanding that there is also a further oversight provision, namely the general oversight provisions of the Investigatory Powers Commissioner and the other commissioners under part 8 of the Bill? They have main oversight functions to look at how the powers are being exercised generally, as well as in every single double lock instance.
The Solicitor General
My hon. Friend is quite right about that, and I think commissioners would be concerned if for some reason there was an inappropriate overuse of mechanisms such as the one in question, which might appear in future evidence. I believe that we are getting the balance right and therefore the review will, I think, be a useful backstop, but nothing more, I hope.
Joanna Cherry
The Solicitor General has just said he thinks the Government are getting the balance right, but he has also said he will take the matter away and look at it carefully. When he does that, will he also look at the evidence of Sir Stanley Burnton, who told the Committee that he was concerned that substantial modification could be made to a warrant under the Bill with no judicial approval or even notification that names had changed?
The Solicitor General
I am very well aware of the evidence of Sir Stanley, which is why I have couched my remarks in the way I have. It is of course important to balance what he said against the view of his predecessor, Sir Anthony May, who in the 2015 annual report said:
“A case could be made however, that it would be appropriate to use thematic warrants more widely against, for example, a well-defined criminal or terrorist group working for a common purpose.”
I have said what I have said: my thoughts today are that the clause is perhaps getting an unfair battering. However, I listen to everything that is being said, including the hon. and learned Lady’s remarks.
Amendment 95 deals with the question of whether the Bill should require necessity and proportionality with respect to the consideration of minor modifications. I am going to think about it. It is a reasonable point and we may be able to return to it on Report.
To conclude, I think that, in the round, the Government have set out our position clearly. We will consider two points that have been raised, in particular, which I have addressed; but in general terms, while I will resist any amendments that are pressed to a vote today, I want more time to reflect. I hope that that will give Members an opportunity to reflect as well. For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I am grateful to the Solicitor General for taking the time to set out how he understands the process will work. As will be clear from our exchanges, my concern is that the comforting way in which he set out how the modifications process is intended to work is not reflected in the drafting of the Bill. Nevertheless, I have listened to what he said about considering the matter further.
At one point during the submissions he just made, he said that the word “thematic” made everything clear. My point is that the word “thematic” is not in the Bill. I would like the Solicitor General to think about whether the provisions could be improved by an amendment that made it crystal clear that the power is intended for modifications to themed warrants and not to other warrants. It may not be quite as simple as that, but that would certainly reflect the gist of what the Solicitor General said.
The Solicitor General
As I have said, I will take that away and consider it.
Keir Starmer
I am grateful for that. To be clear, I accept that in urgent cases there needs to be a process so that the security services, the police and others are not inhibited from doing what they need to do in real time and fast, but what we are discussing is not an urgent modification process. Again, it is about restricting the scope.
I was going to push the amendment to a vote, but I have been mulling it over in my mind and have decided that I am going to withdraw it in the spirit of the Solicitor General’s approach.
The Solicitor General
It is good to remind ourselves that the codes of practice have been published in draft and we have ample opportunity to revisit them to make the language even better. I hope that that helps the hon. and learned Gentleman.
Keir Starmer
I am grateful for that intervention. This is one of those matters on which we probably need to do as much of the work now as possible, because when the code finally comes back for a vote one way or the other, if there is a deficiency over an issue such as this, we will be put in the invidious position of voting down the whole code because we cannot change it. I am very happy to work with the Solicitor General to set out our concerns even more clearly and to see whether we can make improvements. I doubt that all my concerns would be met, but we might be able to draft a vastly improved model. With that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I was minded to push for a vote on clause stand part, but given what the Solicitor General has said and the very detailed arguments made by the hon. and learned Member for Holborn and St Pancras, I am content not to push the matter to a vote at this stage. Like the hon. and learned Gentleman, I would be very happy to work with the Solicitor General and the Government in looking at this clause.
The Solicitor General
I welcome the hon. and learned Lady’s remarks. They are noted, and I am sure we will be able to work on this constructively. I intend to make no more remarks for fear of repeating the observations I made a moment ago.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Approval of major modifications made in urgent cases
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
Clause 31 is linked to clause 30 and I am minded to oppose it, but I shall not do so at this stage as I would like to see what proposals the Government come back with.
The Solicitor General
I am obliged to the hon. and learned Lady.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32 ordered to stand part of the Bill.
Clause 33
Special rules for certain mutual assistance warrants
Question proposed, That the clause stand part of the Bill.
Keir Starmer
No amendments have been tabled, and I do not oppose the clause, but I have a question that I would like the Solicitor General to deal with now, or at some other convenient point. In any event, I understand that these warrants are not particularly common.
Clause 33(1) makes it clear that the provisions apply predominantly where the subject of interception is outside the United Kingdom, and it effectively allows for sign-off at the senior official level. Notwithstanding that the subject is outside the United Kingdom, do the measures permit interception involving individuals in the UK or the British Isles if they are in communication with the subject? I ask for clarification, because I cannot find an answer myself.
The Solicitor General
I am happy to clarify that. The position is that if the Secretary of State or a senior official acting on behalf of the Secretary of State believes that a person, organisation or set of premises named or described in the warrant as the subject of the interception is in the United Kingdom, that person must cancel the warrant. I hope that that answers the question.
Keir Starmer
It is probably my fault for not putting the question clearly enough. I accept that in relation to the target, but the warrant will cover others than the target. Can the Minister clarify what protection there is under this procedure for people in this country who, although they are not the target, might come within the warrant?
The Solicitor General
What I am trying to deal with is anybody within the warrant, whether person, premises or organisation. If they are within that, they will be covered and it will have to be cancelled. I hope that that gives the hon. and learned Gentleman some reassurance.
Question put and agreed to.
Clause 33 accordingly ordered to stand part of the Bill.
Clause 34
Implementation of warrants
Keir Starmer
I beg to move amendment 252, in clause 34, page 28, line 37, at end insert—
“(4A) Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
This amendment establishes international mutual assistance agreements—as recommended by Sir Nigel Sheinwald and currently under negotiation between the UK and US—as the primary route by which UK agencies obtain data from overseas CSPs. It would continue to enable the imposition of warrant on CSPs in non-MLA countries.
The Chair
With this it will be convenient to discuss the following: Amendment 253, in clause 35, page 29, line 5, at end insert—
“(1A) Where such a warrant is to be given to a person outside the United Kingdom, the warrant shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services.”
This amendment would make the Home Secretary’s confirmation at Second Reading — that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant — clear on the face of the Bill (as well as being in the relevant code of practice) clarifying provisions in the Bill. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs.
Amendment 254, in clause 35, page 29, line 6, at beginning insert—
“Where it is considered unfeasible or inappropriate in the circumstances,”.
See the explanatory statement for amendment 253.
Amendment 255, in clause 36, page 29, line 44, at end insert—
“which for a relevant operator outside the United Kingdom shall include—
(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services; or
(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”
Amendment 256, in clause 36, page 30, line 1, leave out subsection (5).
This amendment clarifies the reasonableness test for overseas CSPs and establishes that international mutual assistance agreements, where they exist, should be the primary route to obtain data from these CSPs.
Keir Starmer
I will be straight and open with the Committee about where the amendments come from. I have been contacted by and have discussed the issues in the Bill with a number of service providers and tech companies in this country and in America. As the Minister will know, they are concerned about how the Bill will operate; no doubt they have been having discussions with the Government as well. They have drafted the amendments and want the Committee to consider them in relation to the operation of the provisions. The amendment have been proposed jointly by Apple, Facebook, Google, Microsoft, Twitter and Yahoo!, as well as techUK, which have clubbed together to raise their concerns through me. It seems to me that their concerns are perfectly legitimate and need serious consideration. That is the context of the amendments.
The first point that the companies make is that companies providing digital services to users are increasingly global in their corporate structure, so it will be rare for the provisions in clauses 34 to 36 to be applied to providers that are completely within the United Kingdom; it is likely that they will touch on others in other jurisdictions. For the record, the companies accept that the current legal framework is fragmented and needs modification. They also say that the mutual legal assistance treaties have not been adapted to handle the huge increase in demand, and that there are already delays and difficulties, particularly in relation to extraterritorial jurisdiction. The background is that various Governments around the world are now aggressively asserting extraterritorial jurisdiction. The word “aggressive” is not intended for this Government, I think, but a number of Governments are going down the road of asserting extraterritorial jurisdiction in different ways over service providers.
In the UK, the Data Retention and Investigatory Powers Act 2014 made explicit extraterritorial powers that the Government said were implicit in the Regulation of Investigatory Powers Act 2000. Those are restated and further extended to the avowed powers. Therefore, the provisions are important for the companies. Their concerns can be set out in the following way. First, they are concerned that if there is a model in this Bill that either does not work or goes further than is appropriate, others will look to it and adopt the same approach. Therefore, other countries and jurisdictions will assert the same extraterritorial jurisdiction, which will create overlapping and conflicting laws. One of the points that they pressed on me—if there is an answer to this, I am all ears—is that if we assert extraterritorial jurisdiction over someone in silicon valley, who is subject to various US laws, and another country does the same, that person’s main headquarters will be subject to a number of different legal regimes, which will create huge problems of conflict for the entities concerned.
Victoria Atkins
This is just a gentle observation to those who have lobbied the hon. and learned Gentleman. It is a very great shame that they did not feel able to give oral evidence to the Joint Committee to explain those points themselves. They declined our invitation, and now they are relying on the hon. and learned Gentleman to make those points for them. Is it not a shame that they declined the opportunity to make those points themselves?
Keir Starmer
I am afraid I am not in a position to answer one way or the other. I do not know the background to that. I will make the points to the best of my ability in the time available, but I will also encourage them—
The Chair
Order. The hon. and learned Gentleman tabled the amendments in his own name, and they are in order.
Keir Starmer
I am grateful for that guidance, Mr Owen. If there is any further information that the tech companies can provide, they will do so. To be absolutely clear, these concerns were raised with me by a particular company but, after reflecting on them, I put them forward in my own name because I think they are genuine concerns. The conflict of laws is a real concern.
This comes up in a later clause, so we can look at it in detail then, but the problem the companies foresee is that if they are asked to do something that puts them in breach of the law in the country in which they are based, they will have a real dilemma. The Bill as drafted does not give them a way out of that dilemma. I am raising their concerns; it is appropriate for a scrutiny Committee to know the real concerns of those who are going to be called upon to implement the warrants, and to consider them.
Amendment 252 states:
“Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
It intends to ensure that, where there is a mutual legal systems’ provision that bites, this Bill should not be the route for enforcing the requirements of the warrant. It is a perfectly practical and sensible provision; if that enforcement is provided for by an international mutual assistance arrangement, that should be the primary route, because it will, one hopes, have in-built ways of dealing with the conflict point that I articulated.
Amendment 252 is to clause 34. I will deal with the amendments to clauses 35 and 36 when we get to them, if I may. There is a theme running through.
The Minister for Security (Mr John Hayes)
Thank you, Mr Owen, and I welcome you to the chair.
There are two points at the outset. I am grateful to the hon. and learned Gentleman for being clear about the genesis of these amendments. I also asked my officials that question; I assumed that the amendments had come from that source. Secondly, he will be aware that extra-territorial matters regarding overseas organisations or companies are always challenging, but, equally, he will recognise that in this context it is critically important that we address that point, because the ownership of companies that have a profound effect on the matters we are debating is often outside the UK.
Mindful of those points, let me move to the amendments. Amendment 252 seeks to remove the ability to serve warrants on an overseas provider, where a mutual legal assistance agreement is in place. It is important to understand that that would have several consequences. One possible consequence would be to slow the process down. The second, more fundamental, consequence would be for us to lose the ability to serve a search warrant on a company based outside the UK that provides services to users in the UK. Contextually, many of the people who pose the greatest threat to us use services which are based in companies outside this country, especially, as the hon. and learned Gentleman suggested in his opening remarks, in the United States of America. The mutual legal assistance treaty does not provide a course for interception warrants. It is a route to secure evidence, as he will be very much aware from prosecutions. It is used to obtain communications data and store them for use in prosecution. It is of little or no use in very fast-moving counter-terrorism circumstances or in serious crimes operations, which we are frequently dealing with. I do not need to go into immense detail because, I think, the demand for brevity is such that that would be superfluous. Any number of the pieces of evidence offered in the work done so far on the Bill make it absolutely clear that, in both of those kinds of cases, communications data are absolutely central, which is true to an increasing degree, and it is often provided by companies from outside the United Kingdom.
In his report, with which you will be familiar, Chairman, David Anderson addresses that point precisely. He argues that the mutual legal assistance treaty route is
“currently ineffective. Principally this is because it is too slow to meet the needs of an investigation, particularly in relation to a dynamic conspiracy”
of the very kind I have described in relation to organised crime and terrorism. He argues that it does not address intelligence needs. He notes that progress has been made and he cites the Irish Government in the context of the EU protocols for legal assistance. The hon. and learned Member for Holborn and St Pancras made reference to the work that the Prime Minister’s envoy is doing in this regard, but the Prime Minister’s envoy has said:
“While we should improve our current Mutual Legal Assistance Treaty, it will never be fast enough or have a scope wide enough to allow for urgent counter-terrorism and similar requests.”
The final point is critical. As well as being too slow, the MLAT route is limited to a request for evidence in relation to serious crime prosecutions; it does not provide for national security or investigations that are at an intelligence-gathering stage rather than those in which the focus is on obtaining evidence. As I said, it is essentially about prosecutions, so it cannot deal with that earlier work. Other similar agreements—for example, the European mutual legal assistance convention—have similar drawbacks. Although I appreciate that the amendment is probing, relying on this route simply would not deliver the effectiveness that we need.
Clause 35 makes provision for the service of a targeted interception warrant or a mutual assistance warrant on a person outside the UK. The amendment would require a warrant to be served on an overseas communications provider at their principal overseas office in the first instance. The ways in which an interception warrant may be served on a person outside the UK are already set out in the clause, providing a number of alternative methods, to allow flexibility.
It is interesting that the hon. and learned Gentleman spoke about companies that have been deep in discussion. He will know that there is quite a difference of opinion among companies about this. Some want flexibility and some take a different view. It is a mixed picture. He will also know that we have had extensive discussions with the sector and providers over a considerable period of time about various aspects of the Bill, including this one, and there is a difference of opinion among companies about that. Service to the principal office overseas is already possible under the clause, so there is nothing added to the Bill in that sense, but stipulating a mandatory method for how a warrant is served is unnecessary and possibly even unhelpful.
On the amendments to clause 36, I have set out the importance of the need for flexibility, and I hope that I have also made the case about vital intelligence work and so on. I can see the hon. and learned Gentleman beginning to stir.
Keir Starmer
The last time I was in a Bill Committee, I moved my arm in a particular way and somebody thought it meant I wanted to intervene. On this occasion, I do.
On clause 36, there is a concern, and anything the Minister can say on the record would be helpful. The problem is subsection (5), which is an attempt to help or to get round a problem, but does not go all the way. It states:
“In determining for the purposes of subsection (4) whether it is reasonably practicable for a relevant operator outside the United Kingdom to take any steps in a country or territory outside the United Kingdom for giving effect to a warrant,”—
because it is only reasonable steps they must take—
“the matters to be taken into account include the...requirements or restrictions under the law of that country”.
The concern is about asking for something that is unlawful.
The Chair
Order. Just to help the Minister, we are still on amendments 252 to 256 to clause 34. We will come to the future clauses.
Mr Hayes
Without question, we will return to the matters in hand. The hon. and learned Member for Holborn and St Pancras is very helpful, but I appreciate your guidance, Mr Owen.
The effect of removing subsection (5) would leave the company alone to decide what reasonable steps were required to be taken for giving effect to the warrant. I do not think we should accept that position. Our engagement with overseas companies over the past few years has been clear. They require certainty of their obligations, and I know that is what the hon. and learned Gentleman is seeking. For that reason, Parliament enacted the Data Retention and Investigatory Powers Act 2014 as emergency legislation, to remove uncertainty.
I am not sure, given the threats we face, whether it is appropriate to leave a private company to determine whether it is obliged to do what is asked of it by legal instrument. The Bill already requires any requirements and restrictions under the law of the country where a company is based to be taken into account. In my view, it is wholly right that the UK Secretary of State makes that decision rather than a corporation.
The effect of the amendments in practice would be to transfer fundamental decision making to the corporation and I am not comfortable with that. I think it is right that these companies providing communications services to users in the UK should be required to comply with our law. I know that is not necessarily always their view but it is certainly mine and the Government’s. That must include UK warrants requesting the content of criminal and terrorist communications.
Members might recall the Home Secretary’s comments on Second Reading that made clear that we are working with the United States—I know the hon. and learned Gentleman wanted that assurance—to establish a new framework, which would release American companies from any perceived conflicting legal obligations.
The hon. and learned Gentleman makes a perfectly reasonable point about balancing a range of possibly competing or conflicting legal requirements but, frankly, multinational companies deal with that kind of thing all the time. These are companies dealing with all kinds of legal provisions and demands from all kinds of places in the world. This is not uncharted territory for them.
Joanna Cherry
It is incumbent on me to challenge something the Minister has just said. As I understood him, as far as possible it is desirable for the law of the UK in this respect to have effect abroad. How would the Minister feel if the French passed legislation that they wanted to have effect in England and Scotland?
Mr Hayes
That would be a more appropriate question to put if we were debating different amendments. I do not want to stray too far from your guidance, Mr Owen, so I will stick strictly to the amendments, rather than being encouraged down a tributary that I would not necessarily seek or want to navigate, particularly as it is implicitly about the European Union.
Let me return to the subject in hand. I accept that this is challenging but we need flexibility in the way we go about these things, coupled with determination that everyone must play their part, including these corporations, in helping to deal with the threat we face. We are trying to do that as much as we can through co-operation, as the hon. and learned Member for Holborn and St Pancras knows. It is vitally important that we retain the ability to take action against companies that do not comply with their obligations.
Once an agreement is reached it will be placed before Parliament under the Constitutional Reform and Governance Act 2010 in the normal way. On that basis, notwithstanding the hon. and learned Gentleman’s perfectly proper desire to probe the matter, I invite him to withdraw the amendment.
Keir Starmer
Of course, I accept the need for arrangements to be made with service providers and others in other jurisdictions. If that were not provided for, a lot of the Bill simply would not work or have any meaningful effect. I accept that proposition. I also accept that there are problems with the existing mutual legal assistance arrangements. The amendment—it was a probing amendment, so I shall not push it to a vote—envisaged further arrangements in due course. In truth, the sooner they can be progressed and agreed, the better.
I accept the proposition that we cannot necessarily leave it to the companies themselves to take decisions about which bits of any requirement they ought to comply with. The choice set up by the provisions, which may be a stark choice, is not whether to comply but which offence to commit. I am sure that, in reality, and hopefully in the consultation discussions, there will rarely, if ever, be a requirement that puts a company in breach of the law where they operate, but if it does, the company will have to make a choice: “Either we breach US law or UK law.” That is pretty invidious.
Companies do not want to be put in that position, but they will read carefully what the Minister has said. They are following progress carefully, and I know that progress is being made. On that basis, I will withdraw all three amendments, which address all three clauses, but I hope that I have made clear those companies’ concerns, which I share. Everything that can be done to fast-forward an international legal framework for this sort of requirement should be done as soon as possible. If it is not, not only tech companies but, I fear, the security and intelligence services, will be the losers. The more difficult it becomes to comply with a requirement in real time, the more likely it is that things will be lost while disputes are had about the requirements. I beg to ask leave to withdraw the amendment.
The Chair
Mr Starmer has indicated that he wishes to withdraw the amendment. Ms Cherry, did you wish to catch my eye?
Joanna Cherry
Yes. I do not have any amendments, but I wish to speak on these clauses.
Amendment, by leave, withdrawn.
Clause 34 ordered to stand part of the Bill.
Clause 35
Service of warrants outside the United Kingdom
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I wish to speak about the service and implementation of warrants outside the UK. What I have to say applies equally to clauses 35 and 36. The genesis of my submission is not corporate concerns but strict legal principle. Violation of that principle would have important international political and commercial implications.
The Minister said a moment ago that everyone must play their part; I presume that he meant in fighting terrorism and serious crime. I wholeheartedly agree, but everyone must play their part in accordance with law. Clauses 35 and 36 seek to replicate provisions that are already in DRIPA. At the time when DRIPA was passed, the Government claimed that RIPA had always had extraterritorial effect and that the provisions in DRIPA were simply intended as clarification, but that claim was misleading and ill-founded in law.
As I tried to indicate in my intervention a moment ago—it was partly in jest, as Conservative Members frequently complain about legislation from continental Europe, but it was also serious—in general terms, legislation passed by the UK does not have direct effect in other jurisdictions, just as we would not expect the law of France to have direct effect in the United Kingdom. For the Government to claim that RIPA had extraterritorial effect without the Act even saying so makes absolutely no sense.
The Minister referred to David Anderson’s report, “A Question of Trust”. David Anderson noted at paragraph 11.17 of the report that
“overseas service providers are generally unhappy with the assertion of extraterritoriality in DRIPA 2014, which they did not necessarily accept (despite the view of the UK Government) to have been implicit in the previous law and had not encountered in the laws of other countries.”
As a Scottish nationalist, I forebear from commenting on the unique assertion of the United Kingdom that its law applies in everyone else’s country when others do not claim that, but I will move on with the quote from David Anderson:
“While legal compulsion was in principle preferable to voluntary compliance, it was thought that the unilateral assertion of extraterritorial effect would be met by blocking statutes, was not ‘scalable to a global approach’ and was viewed as ‘a disturbing precedent’ for other, more authoritarian countries.”
There is a concern that, if the United Kingdom decides to tell the world that its legislation applies in other countries, it would be a spur for more authoritarian regimes to do likewise.
David Anderson went on to note that when countries seek to enforce their legislation extraterritorially, such powers might come into conflict with the legal requirements in the country in which the company that has been asked to comply through a legal request is based or stores its information. Companies explained to David Anderson that they did not consider it was their role to arbitrate between conflicting legal systems. That must be right. The protection of human rights should not be left to the good will and judgment of a company, nor indeed should the enforcement of important powers to fight terrorism and serious crime be left to the judgment of a company.
David Anderson went on to say that principled concerns had been expressed by companies:
“They expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”
During discussion of David Anderson’s reports, about the draft Bill and on Second Reading on the Floor of the House, we have heard frequently that the Bill, if the British Parliament gets it right, could be an international template. That is what worries me about the clauses: the example is not a good international one to set, unilaterally to declare that our law must apply in other countries, because there is a real risk that authoritarian regimes might do likewise. We would not want that.
Lucy Frazer
I am looking at the clause, which is not massively dissimilar to all the provisions in the White Paper about service on companies in or out of jurisdiction. The clause is on service, so I am struggling with the hon. and learned Lady’s talk about extraterritoriality.
Joanna Cherry
As I said, I am dealing with clause 35, “Service of warrants outside the United Kingdom”, and with clause 36, “Duty of operators to assist with implementation”, which serves clause 35 and imposes a duty on operators to assist with implementation outside the UK. That is why, as I said at the beginning of my submission, clauses 35 and 36 have to be discussed together.
I want to be clear that I am not saying that we should not have provisions that deal with extraterritorial enforcement, or that we should not have allowance for it. Clearly, we have to have that, but the question is how we go about it. Mutual legal assistance agreements have already been mentioned and, in my submission, the most appropriate and probably most successful way for the British Government to seek to access information held overseas or by companies based overseas, or to have provisions that will allow the Government to do so, is to extend and improve the use of the mutual legal assistance agreements.
In “A Question of Trust”, David Anderson concluded in recommendation 24 that
“the Government should…seek the improvement and abbreviation of MLAT procedures, in particular with the US Department of Justice and the Irish authorities”—
Ministers alluded to that—
“and…take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”
David Anderson’s report also referred to the work of Sir Nigel Sheinwald, and we have heard a bit about that already. David Anderson suggested that Sir Nigel’s could be the “decisive voice” in the matter. In a written statement in response to the Anderson review on 11 June last year, the Prime Minister said:
“the Government will be taking forward Sir Nigel’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework. As David Anderson recognises in his report, updated powers, and robust oversight, will need to form the legal basis of any new international arrangements.”
It is most regrettable that, in the light of what the Prime Minister said, this Bill is completely silent on the promised new framework. Instead, it simply returns to what I would submit is a rather lazy and potentially dangerous assertion of extraterritorial effect. It is concerning that a piece of legislation that purports to be comprehensive on this matter is silent on the significant issue of how surveillance operates in the global communications environment, despite the fact that the Prime Minister outlined the need for reform.
My argument is that these two clauses are wholly inadequate to achieve what the Government say they want to achieve. They fly in the face of legal principle and, importantly, they could cause international political difficulties as well as international commercial difficulties.
Mr Hayes
I can deal with this in two minutes. First, of course these things are challenging. I said that at the outset. Secondly, David Anderson is very clear in recommendation 25 of his report—the recommendation after the one that the hon. and learned Lady quoted—that:
“Pending a satisfactory long-term solution to the problem, extraterritorial application should continue to be asserted in relation to warrants and authorisations…and consideration should be given to extraterritorial enforcement in appropriate cases.”
That was his consideration, and that is right. These are challenging matters, but, frankly, companies have to make grown-up decisions about where they operate. Conflicts and other issues are already dealt with in the Bill, and we are working with the US to address concerns and to negotiate a new framework.
I think it would be extraordinary, given the current state of multinational business and the increasingly global online environment, if we did not put provisions in the Bill to provide powers to take action where necessary. I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
Christian Matheson (City of Chester) (Lab)
On a point of order, Mr Owen. A Division was called and the Doorkeeper announced a Division in Committee Room 14, at which point I made my way back into the room. I am not clear on the rules for Divisions, so I seek your guidance, but I was in the room at the time that my name would have been called. It was not called. I would have abstained anyway, but I seek your guidance on why my name was not called.
The Chair
You have done my job for me. I indicated to the Opposition Whips that we were ready to take the vote, and they said yes. If you have an issue, it is with your own Whip. You have it on the record.
Christian Matheson
I am grateful, Mr Owen.
Clause 36
Duty of operators to assist with implementation
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Sixth sitting)
Thursday 14th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 April 2016 - (14 Apr 2016)
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
Joanna Cherry (Edinburgh South West) (SNP)
The clause deals inter alia with interception in immigration detention facilities, and it is that which leads me to oppose its inclusion in the Bill. We can see that there is some replication of previous legislation in the provisions that deal with interception in prisons and psychiatric institutions, but the provision on immigration detention facilities is new and it is deficient in several respects. The theory underlying it is deficient, because immigration detention facilities are dealt with in a part of the Bill that includes psychiatric hospitals and the facilities are defined to include immigration removal centres, which are short-term holding facilities in which people, including families with children, are held in the so-called pre-departure accommodation.
Immigration detention has been the subject of much discussion on the Floors of both Houses because it is done by administrative fiat and without limit of time. The person detained will not have been brought before a court or tribunal to have the lawfulness of their detention or entitlement to bail considered, unless they instigate such a process; and the powers to detain are very broad and cover a large number of scenarios. The Bill states that conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules or the rules for short-term holding facilities.
The Minister for Security (Mr John Hayes)
It may help the hon. and learned Lady to abbreviate her remarks if I say that the provision is not intended and cannot be used to deal with someone’s asylum or immigration status. That is not its purpose. With that assurance, perhaps the last point she made will not quite hold the water in her mind that it currently does.
Joanna Cherry
That does not really give me the assurance I seek. I was going to say that, under the clause, conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules, or the rules for short-term holding facilities and pre-departure accommodation made under sections 157 and 157A of the Immigration and Asylum Act 1999 respectively. The latter sets of rules do not actually exist. Rules governing the regulation and management of short-term holding facilities were made in 2002, but it took until 2006 for draft rules to appear covering similar ground for short-term holding facilities as the detention centre rules do for immigration removal centres.
Back in 2006 the Home Office consulted on draft rules, to which various persons responded. In 2009 the Home Office consulted on another draft of the rules, to which there were further responses, many of them adverse; a number of freedom of information requests and parliamentary questions followed. In April 2012 the rules were described by the then Minister, the right hon. Member for Ashford (Damian Green), as being “still under development”.
In March 2014, during the passage of the most recent immigration Bill, which became the Immigration Act 2014, Lord Taylor of Holbeach gave a commitment to Lord Avebury, who had been chasing the rules since 2006, that
“rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess.”—[Official Report, House of Lords, 3 March 2014; Vol. 752, c. 1140.]
Lord Avebury was informed before the recess that the commitment would not be met. He continued to pursue the matter, and draft rules were finally published on 18 February this year, almost a decade after the first draft was published and some 14 years after they were envisaged. That wait does not appear to have produced a version markedly different from earlier versions or particularly tailored to short-term facilities. In those circumstances, it is very far from clear what powers are being given by the current Bill. That shall be the gravamen of my exception to the clause.
In his review of immigration detention, Sir Stephen Shaw paid special attention to the problems of short-term holding facilities and the dreadful conditions in some of them. We have all heard about that on the Floor of the House. His concerns led him to recommend that a discussion draft of the short-term holding facility rules should be published as a matter of urgency. In the meantime, after he had said that, Her Majesty’s chief inspector of prisons published a damning report on one particular facility, the Longport freight shed in Dover, describing the dire state of the facilities there. He said:
“on various occasions Home Office staff told us that they did not consider Longport to be a place of detention…despite detainees being in possession of legal authority to detain documentation and obviously being unable to leave. At this facility, the normal mechanisms of internal oversight and accountability that should apply to any form of detention were lacking.”
Under such circumstances, the notion of any lawful exercise of the powers contained in clause 44 seems fanciful.
There are also problems with immigration removal centres. The latest version of the detention centre rules dates from 2001. They were last amended in 2005 to update the name of the tribunal hearing immigration cases and bail applications, but by the time that was done the name itself was out of date because it had already been replaced by the immigration and asylum chamber of the first-tier and upper tribunals. The rules contain a broad range of powers from powers to fingerprint individuals and powers of search, to powers to identify survivors of torture or persons with a mental or physical illness; powers on medical information and notification of illness and death; powers to segregate and use force, and powers to carry out compulsory tests for drugs. There are also rules regarding visitors to centres and contractors.
My point is that the rules cover the sorts of matters that would be covered by prison rules but they apply to a different regime and to people who have not been detained by the courts or by due process of law. The overall effect is a lack of clarity. When one is working against the background of rules that do not exist or, if they do exist, lack clarity, a clause such as clause 44 potentially has a very far-reaching impact on people whose civil liberties are already severely undermined by the circumstances of their detention. The Government do not need to take just my word for that; it is a view widely held, including by a number of Government Back Benchers and peers.
Keir Starmer (Holborn and St Pancras) (Lab)
We will not oppose the clause but I wish to put on record our concern about immigration detention and the intercept of communications in immigration detention facilities. There is growing concern, as has already been said, about the fact of that detention, the length of it and the conditions. There have been a number of reports, to which the Government have responded. In those circumstances, it is incumbent on the Government to justify the clause, although we will not seek to delete it.
Mr Hayes
I will be equally brief. There is a misconception about this matter. The Bill as drafted simply ensures that any interception carried out at a detention centre and under detention centre rules is lawful. No purpose is intended other than the maintenance of safety and security of the people in those centres. It is clearly right that officers should be able to intercept attempts to send contraband material, for example, such as drugs, in particularly sensitive environments. The power cannot be used to deal with the outcome of any immigration cases, asylum applications and so on.
The Immigration and Asylum Act 1999 contains the power to make rules for management of immigration detention centres. Clause 44 provides that interception, carried out in accordance with those rules will be within the law. In a sense, it is as simple as that. I can see why the hon. and learned Lady might have misunderstood this, but I can assure her that that is what is in the Bill and, I put on the record, is the Government’s position. Rather than detain the Committee now, it might help if I send copies of the detention centre rules to Committee members, as they contain the essence of the argument that I have just made.
Joanna Cherry
My essential objection to the clause is that subsection (1) states:
“Conduct taking place in immigration detention facilities is authorised by this section if it is conduct in exercise of any power conferred by or under relevant rules”,
with the relevant rules described in subsection (2), and the underlying “relevant rules” are wholly inadequate. There has been a long history of problems with the rules, so the clause rests on a very shaky and unsafe foundation. I am concerned to protect the civil liberties of persons who are not criminals, who are not guilty of any violation of the law, but who are detained under immigration rules and whose civil liberties are already severely curtailed.
Mr Hayes
I have a great deal of regard for the hon. and learned Lady’s diligence, but she is tilting at windmills. The clause is pretty straightforward. The points she makes about the management of detention centres may be perfectly reasonable debating points for a different Bill at a different time, but this Bill is not really about the management of detention centres and similar places. That matter is rightly dealt with in the relevant legislation. This Bill is merely about the application of certain powers to those centres to ensure that they are lawful. It is not much more complicated than that. On that basis, I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
Keir Starmer
We do not oppose the clause, but I am duty bound to express the concern that the Joint Committee had—there were Opposition Members on the Joint Committee too—about safeguards in the Bill for the sharing of intelligence with overseas agencies. The Joint Committee was particularly concerned about clause 47 and suggested that safeguards should address concerns about potential human rights violations in other countries with which information might be shared. My question to the Solicitor General is: why did the Government not accept that sensible Joint Committee recommendation in the light of those human rights concerns?
The Solicitor General (Robert Buckland)
Regarding the Joint Committee’s recommendation, all I can say at this stage is that my understanding of the clause is that the issuing authority must also ensure that restrictions are in place that would prevent to the extent considered appropriate the material being used in any legal proceedings outside the United Kingdom, which of course would be prohibited by clause 48. There will be other obligations that the agencies will have to follow—for example, consolidated guidance. If the hon. and learned Gentleman would like any further clarification, I would be happy to write to him.
Keir Starmer
I am grateful.
Question put and agreed to.
Clause 47 ordered to stand part of the Bill.
Clause 48
Exclusion of matters from legal proceedings
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I oppose the inclusion of the clause in the Bill. Clause 48, with schedule 3, broadly replicates the existing procedure in section 17(1) of the Regulation of Investigatory Powers Act 2000, whereby material obtained by way of an intercept warrant cannot be used as evidence in ordinary criminal proceedings.
Schedule 3 makes a number of exceptions to allow intercept evidence to be considered in civil proceedings where there is a closed material procedure in place—that is where a party and his or her legal team are excluded. Those proceedings would include, for example, proceedings under section 6 of the Justice and Security Act 2013, proceedings in the Special Immigration Appeals Commission or under the Terrorism Prevention and Investigation Measures Act 2011. Schedule 3 makes no exception for criminal proceedings, except in so far as material may be disclosed to the prosecution and to the judge so that the judge might determine whether admissions by the Crown are necessary for the trial to proceed in a manner that is fair. Deleting clause 48 would remove that exclusion, so that there would be an exception for criminal proceedings. It would also permit intercept material to be treated as admissible in both ordinary civil and ordinary criminal proceedings, subject to the ordinary exclusionary rules applicable to other proceedings, including public interest immunity and the provisions of the Justice and Security Act in civil proceedings.
I am indebted to Justice, the human rights group of lawyers that includes members of all parties and none, for its help in formulating my argument for deleting the clause. Justice has long recommended the lifting of the bar on the admission of intercept material as evidence in civil and criminal proceedings. In 2006, it published a document “Intercept Evidence: Lifting the ban”, in which it argued that the statutory bar on the use of intercept as evidence was “archaic, unnecessary and counterproductive”.
The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes
“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.
Victoria Atkins (Louth and Horncastle) (Con)
Has the hon. and learned Lady taken into account the Criminal Procedure and Investigations Act 1996, which ensures fairness of disclosure in English and Welsh courts, as practised by many Members of the Committee, and is at the centre of the arguments against admission of this evidence?
Joanna Cherry
I have considered it, but we are not talking about disclosure, we are talking about the admissibility of evidence. As the hon. Lady will very well know, things may be disclosed to lawyers in the course of proceedings to try, as I said earlier, to make sure that there is a fair trial, but they are not necessarily admissible. I am talking about lifting the ban on the admissibility of intercept evidence.
Victoria Atkins
If there is something under the code that assists the defence or may undermine the prosecution, the prosecutor is obliged to make that known to the judge. A decision is then taken as to whether the disclosure of that material is so necessary that, in effect, the trial cannot continue.
Joanna Cherry
Of course the hon. Lady is absolutely right. I said that that was the case earlier, but that is not the end of the matter. As the European Court of Human Rights has recognised, where intercept material is admissible, its admissibility constitutes
“an important safeguard: against arbitrary and unlawful surveillance”.
I know many Government Members are not too keen on the European Court of Human Rights; they might find the Privy Council report published December 2014, “Intercept as Evidence”, more palatable. In paragraph 84, it confirmed that a fully funded model for the removal of the ban could result in a
“significant increase in the number of successful prosecutions.”
That report also reflected concerns of agencies and law enforcement bodies that removing the ban without full funding could reduce its effectiveness. I acknowledge there is a funding issue and I am sure the Government will want to talk about that.
What I am really saying is that the Bill is a lost opportunity to remove the ban on admissibility of intercept material in criminal proceedings, which could benefit all. The Committee has heard what the Privy Council and the European Court of Human Rights have said on that. Many other countries manage to operate effective surveillance systems in which intercept material is admissible in criminal proceedings in certain circumstances. As I said, there will always be public interest immunity and the provisions of the 2013 Act in civil proceedings to allay some of the concerns Government Members might have.
The Joint Committee on the Draft Investigatory Powers Bill recommended that the matter should remain under review, and in paragraph 675 of its report invited the Government to take note of the “significant perceived benefits” of using intercept material in criminal proceedings. There are other arguments in favour of removing this ban. Members may want to think about how the current bar on the use of targeted intercept material relates to a new focus in the Bill on expanded and untargeted access to communications data.
Victoria Atkins
How would the hon. and learned Lady recommend that prosecuting counsel deal with an application from the defence to reveal the methodology used by the security services in obtaining intercept material? If the ban is removed, how is prosecuting counsel to answer that?
Joanna Cherry
It is not about the methodology; it is about the admissibility of the material itself. Far be it from me to lay down rules, at this stage of proceedings, for the Crown Prosecution Service or the Crown Office and Procurator Fiscal Service in Scotland. That is something that will have to be worked out, but it will not be worked out in a vacuum, because the Privy Council has looked at this detail and many other countries have a system such as this that works.
It comes back to a continuing theme in my concerns about the Bill. Let us not be inward-looking. Members of my party are sometimes accused of being narrow nationalists, but I often think that is an allegation more accurately directed at the Conservatives. We should look at practice elsewhere in the world. Britain is not uniquely placed to decide how to have the best and fairest surveillance system. Our security services probably are world leading—I recognise that, and I mean no disrespect to them—but we are not here just to please them; we are here to protect our constituents’ interests, as well as human rights in general, and to produce legislation that is balanced and fair.
I oppose the clause because I think there are good arguments in favour of making intercept material admissible in criminal proceedings. As the hon. Lady has indicated complex procedural rules would have to be built up—we have had a ban in our two legal systems in Scotland and England for so long that we would have to go back to the drawing board and think very carefully. She is right to say that this is not an easy matter, but we are not starting with a blank slate. If we do not want to look to Europe—I know that people are not too keen on Europe at the moment—we can look to the experience of other Commonwealth countries.
Victoria Atkins
The reason I keep rising when the hon. and learned Lady mentions other countries is that England and Wales have an extraordinarily thorough—I want to say “generous,” but that is not the right word—disclosure regime, which is not mirrored elsewhere in the world. Look at the United States: the disclosure tests that occur in this country have very little relationship to what happens in America, so it is not right to compare the two.
Joanna Cherry
The hon. Lady makes a fair point that England and Wales have very clear disclosure procedures. Now, thank goodness, so does Scotland as a result of a number of Supreme Court decisions. We had a long way to go 10 years ago, but we have since come a long way. This is not about disclosure; it is about admissibility. Those are two very different things, as she well knows. Frequently things are disclosed that are not admissible.
Victoria Atkins
If evidence is admissible, the defence is quite within its rights to ask that question of prosecuting counsel. It is a question that is asked in a different form when a defendant suspects that there is an informant. How is prosecuting counsel to argue against that?
The Chair
Order. If the hon. Lady wishes to make interventions, they are to be short. She has an opportunity to make a contribution afterwards.
Joanna Cherry
At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.
I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.
Keir Starmer
It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.
The Solicitor General
The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.
Keir Starmer
I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.
The Solicitor General
I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.
I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.
My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.
The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.
The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.
Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 77, in clause 49, page 39, line 2, after “not”, insert “, without reasonable excuse,”
The Chair
With this it will be convenient to discuss amendment 78, in clause 49, page 39, line 19, at end insert—
“(3A) For the purposes of subsection (1), it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”
This provision adds a “reasonable excuse” defence to the “unauthorised disclosure” offence and expressly provides that the defence applies where the permission is given by the person issuing the warrant or the person to whom it is issued, the equivalent of a similar provision in clause 73(2) in relation to communications data authorisations.
Keir Starmer
I can be brief because the amendments speak for themselves. Amendment 77 is intended to insert a reasonable excuse exception to the duty not to make an unauthorised disclosure, and amendment 78 goes with it by spelling out that it is a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.
There are two principal arguments. One is that in this and the following two clauses flexibility is needed for disclosure made in certain circumstances. The second point is one that some of the service providers are concerned about. They want to have discussions among themselves and with others about how to make the provisions in the Bill work.
At the moment, clause 49 would prohibit them from discussing either particular warrants or steps that they may be asked to take in order to solve some of those difficulties. It is the absolute nature of the prohibition that is the concern. Amendment 78, which allows disclosure if it is made with the permission of the person issuing it or to whom it is issued, seems to me to be a sensible way of getting around that particular problem.
Mr Hayes
As the hon. and learned Gentleman says, amendments 77 and 78 would amend the duty not to make an “unauthorised disclosure” to add the defence of “reasonable excuse”. I accept that that would be on par with clause 73(2), which concerns the communications data provisions. I think that it is right that we retain the position that exists under RIPA, which itself reflects the sensitivity of the techniques of intercepting agencies, the fact that material obtained through intercept cannot be used in evidence—unlike communications data—and makes it an offence to disclose the existence of a warrant.
As clause 50 sets out, disclosure is already permitted if
“authorised by the person to whom the warrant is…addressed”.
I would therefore argue that amendment 78 is not required.
It is worth adding that clause 50 sets out four categories in which disclosure can be authorised. I will not repeat them; they are pretty self-explanatory and, for the sake of brevity, we need to move on. Those exceptions provide adequate protection and, in my judgment, collectively render this amendment unnecessary, particularly clause 50(2)(b). I see why the amendment has been tabled and why the hon. and learned Gentleman wants to probe on it, but as he has acknowledged during our deliberations, the techniques and details of the capabilities of intercepting agencies must be protected for all kinds of reasons that we do not need to rehearse once again. Disclosure of such details would potentially cause some damage to the ability of those agencies to do their job.
Having said that, I completely accept that, if there is a case of wrongdoing or impropriety, and that case is made public, it is right that justice is done. There is no doubt about that, which is precisely why we have put into the Bill the establishment of a commissioner with the power to look at any aspect of those matters. In the end, it is better that a senior impartial and qualified person should take a view than, say, a junior official or employee of a telecommunications operator.
Nevertheless, I accept that it is important that people can raise concerns without fear of prosecution, which is why—I invite Committee members to look at it—we added clause 203 to the Bill, which we will get to when the Committee considers part 8. You will not let me go into too much detail about that now, Mr Owen, but people will understand that it provides protection for whistleblowers through an information gateway, so that the commissioner that I described will receive information of the kind that I described in a straightforward way.
These clauses combined maintain an important principle: techniques and details of capabilities of intercepting agencies must be protected. Of course, it is important that we caveat that with the checks and balances that I have set out. I am not sure that these amendments would add much—or anything; I was just being polite—and I therefore invite the hon. Gentleman to withdraw them.
Keir Starmer
I listened carefully to what the Minister said about clause 50(2)(b). It may be that that provides a different route but achieves the same objective, and in those circumstances I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49 ordered to stand part of the Bill.
Clause 50
Section 49: meaning of “excepted disclosure”
Keir Starmer
I beg to move amendment 65, in clause 50, page 40, line 27, leave out paragraph (7)(a).
The Chair
With this it will be convenient to discuss amendment 66, in clause 50, page 40, line 35, leave out
“under Chapter 1 of this Part”
and insert
“described in sub-paragraphs (2)(a)(i) and (ii) of section 49.”
Keir Starmer
There is a substantive point, but that comes under clause stand part, so I will deal with it when we get to that, if I may. Amendments 65 and 66 would bring into alignment—where are we? They are both focused on head 4. I think we have missed an Act out.
Mr Hayes
I think the hon. and learned Gentleman will find that amendment 65 would remove the exception from the duty not to make disclosures about a warrant where a postal operator or a telecommunications operator discloses statistical information about warrants in accordance with requirements set out in regulations made by the Secretary of State. Is that helpful?
Keir Starmer
That is helpful and I am grateful to the Minister. Amendment 66 is designed to align clause 50(7)(b) with clause 49(2)(a)(i) and (ii). The duty not to make unauthorised disclosures applies to both a warrant under chapter 1 of this part and a warrant under the relevant part of RIPA. The problem with head 4, unless I have misunderstood it, is that under clause 50(7)(b), it only relates to chapter 1 of this part and does not cross-relate to RIPA. I am happy to withdraw this amendment if it is catered for by other measures.
Mr Hayes
I will deal with this matter as briefly as I can. In the end, if we follow through the logic of the amendment, it would provide additional opacity rather than additional transparency. I think that if the hon. and learned Gentleman thinks through what he has just said and what I am about to say, he will realise that. In life, I am quite keen on opacity, but in legislation I am not keen on it at all.
Just to be absolutely clear, I point out that amendment 66, as the hon. and learned Gentleman said, relates to clause 50(7)(b)—disclosures of a general nature. At present, this subsection allows a disclosure of information that does not relate to any particular warrant under chapter 1 of part 2, but relates to warrants in general. As we understand the intention of the amendment, it would extend this provision to include a warrant under chapter 1 of part 1 of RIPA. Given that the disclosure simply permits disclosures of a general nature, this proposal is one that could be considered, and I think I would consider it. I am happy to take it away to ensure that there is the consistency that the hon. and learned Gentleman calls for, but I think that the amendment as drafted could be unhelpful to the cause that he has articulated. If he is happy for me to do this, I am happy to take it away, because I do take his point about ensuring that there is consistency. That seems to be the essence not quite of the amendment but of the argument that he made.
Keir Starmer
I will happily withdraw the amendment on that basis. It is intended to allow appropriate discussion of warranting in general so that all those with an interest can take part in the relevant discussions and debates. At the moment, head 4, subsection (7)(b) achieves that for warrants under chapter 1, but does not relate to other warrants. If there is a way of amending or otherwise achieving the desired objective, that would be acceptable. I will not press the amendment, but there is a need for a debate about warrants in general to make sure the systems and processes are articulated and dealt with. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I do not oppose clause 50 stand part, but I ask the Minister to clarify how it is anticipated the clause provides for disclosure of the details of a warrant to the Intelligence and Security Committee. On Tuesday, we had a lively debate about the extent to which Committees of this House can question and protest to the Secretary of State on warrants. My understanding is that if that process is to perform the function that was claimed on Tuesday, it must be done under this provision or not at all because there is an absolute prohibition on the disclosure and that covers the existence or content of a warrant, the details and so on. That stops the Secretary of State or anyone else disclosing to the House, a Committee or anyone else, and goes to the heart of the discussion about accountability.
It was argued that the ISC can hold the Secretary of State to account and it is important that, if this Bill passes into law, we understand how that is intended to take place. It would not come under head 1, head 3 does not apply, and head 4 is for a different purpose. Head 2 may be the answer, but to assist all of us in our further scrutiny of the provisions relating to the role of the Secretary of State and the judicial commissioners, it is important to identify the legal route by which the Secretary of State can be held to account and answer questions within the territory demarcated by clause 49(4). At the moment, it would be an offence for her to disclose any of those matters. Unless there is a route that allows her to do so, that seems to be an absolute bar.
The Solicitor General
I am grateful to the hon. and learned Gentleman for the question. Our answer is that, looking at clause 150(3), we say that it would come under head 2 and that the Secretary of State would have discretion to disclose—[Interruption.]
The Solicitor General
Sorry. It is clause 50(3), where we have head 2 and:
“(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made to, or authorised by, a judicial Commissioner;
(b) in the case of a warrant under Chapter 1 of Part 1…a disclosure made to, or authorised by, the Interception of Communications Commissioner or a Judicial Commissioner”.
The disclosure is made by the Secretary of State. That might not be clear on the face of it, but that is the intention as I understand it of the clause.
Keir Starmer
I am just not sure. I think the Solicitor General has just quoted clause 152 to me.
The Solicitor General
May I correct the record? It is my error. I omitted a number. I was talking about clause 150(3). Page 117 of the Bill states:
“For the purposes of subsection (2) something is necessary for the authorised purposes if, and only if”,
and then we have paragraphs (a) to (f). That underpins the discretion of the Secretary of State to make that disclosure.
Keir Starmer
I am happy to pursue this matter outside the Committee if it is more convenient, but I think the provisions in clause 150 apply to bulk acquisition warrants rather than all warrants. Clause 150(1) sets out that it is expressly dealing with bulk acquisition warrants, and subsections 150(2) and 150(3) follow on from that. This is not intended as an exercise. Standing back from this, what I am concerned about is that it—
The Chair
Order. That was a lengthy intervention to help the Minister, who I now think wants to get back and explain the situation to the Committee.
The Solicitor General
What I will do is write to the hon. and learned Gentleman. My initial understanding was the right one, but I hope he will forgive me if I wandered off to the bulk powers provisions within the Bill. I will write to him to clarify the position. I think it is what I have said it is, but I will put it in writing.
The Chair
I will allow the hon. and learned Gentleman to ask further questions, and then the Minister may come back if he wishes.
Keir Starmer
Thank you for your indulgence, Mr Owen. I am grateful to the Solicitor General for indicating that he will write, and I am more than happy to have it in writing. That information is important because it is central to the debate about the roles of the Secretary of State and the judicial commissioner. It is not just me. Other people need to be assured on the role and accountability of the Secretary of State. It is one thing to say, “She can be asked in a Committee about it”, but it is another to point to the legal route by which that can happen in practice in a way that allows a degree of accountability. It is not intended as a trick question, and if it can be dealt with in a letter, I would be grateful.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Offence of making unauthorised disclosures
Joanna Cherry
I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—
“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.
The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.
The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.
Keir Starmer
The purpose of the amendment is to state clearly on the record what the safe route is for whistleblowers. There are similar versions in other legislation, including the Official Secrets Act, and the absolute prohibition causes great concern to those who want to expose iniquity. In certain cases and places, the safe route for a whistleblower has been explained. The challenge on the table for the Minister is recognising the concerns and anxieties of those who want to disclose wrongdoing where it is in the public interest for them to do so. There must be a safe route for them. If not this, what is the route? In support of that way of putting it, I pray in aid the Joint Committee recommendation that there ought to be amendment to make it clearer for those who need to know what the route is.
Mr Hayes
This is an interesting amendment. It deals with the tension, which I think all Committee members recognise, between allowing the proper opportunity for those who have legitimate concerns to bring them forward to be dealt with and encouraging feckless complaint. Much of what we do in this House in framing law means dealing with that dilemma, and this is a good example.
The hon. and learned Gentleman—I think that the hon. and learned Lady said it first, actually—drew particular attention to the Joint Committee report. I refer to paragraph 629, which recommends that
“the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill”,
and goes on similarly.
That is precisely what we intend and what we have tried to set out. That said, the hon. and learned Lady will understand that it is important to create a duty, as clause 49 does, not to make unauthorised disclosures. Clause 50 sets out the exceptions to that duty, and clause 51 provides for the offence of making an unauthorised disclosure. Providing a public interest defence of the kind that she discussed is unnecessary in light of the exceptions already in the Bill. In my view, it might even encourage feckless or unlawful disclosures.
Joanna Cherry
The defence would not apply to a feckless or unlawful disclosure. If somebody sought to pray in aid that defence, the jury would have to decide, under legal direction from a judge, whether what had been done was in the public interest. Something feckless—which I gather means “without good reason”—would not be in the public interest.
Mr Hayes
There is a balance to be struck, of the kind that I described. The hon. and learned Lady is right that the route to the commissioner must be clear and straightforward, allowing people of the kind that the hon. and learned Gentleman described to know how they can bring their concerns to his attention. That is why clause 203 provides the information gateway that I spoke about earlier. That is the point made by the Joint Committee. What we have done in clause 203 is essentially give life to the Committee’s recommendations about a direct route to the commissioner.
Joanna Cherry
Does the Minister accept that there might be situations in which an immediate disclosure is required to prevent conduct that is seriously unlawful? That is the situation where the defence is required. Somebody might find themselves in a position of having to make a public disclosure immediately to prevent unlawful conduct. Rather than going around the houses looking for advice or being assured after the fact that what they did was all right, they need to know that there is a defence of public interest to encourage them to make a disclosure immediately to prevent unlawful conduct.
Mr Hayes
Yes, but I am not so sure that, in the modern age, we do not live in precisely the opposite circumstance to the one the hon. and learned Lady sets out. All kinds of information are put into the public domain, whether for right or wrong and whether for good or bad reasons. That information cannot then be withdrawn and it is often taken to be fair and true, when it is anything but. I am not so sure that we do not need a process that is sufficiently rigorous that the commissioner is better placed to take a view on what is, or is not, in the public interest.
I will go further than that. It seems to me that, if we are going to have the commissioner, we have to vest power in his or her hands. If we then created all kinds of other means for dealing with these issues, I suspect that would undermine the commissioner’s significance and discourage people from taking their concerns to the commissioner.
However, I think perhaps we can reach a synthesis around the way we make the route known. In clause 203, we have done what the Joint Committee asked us to do—I note that there are distinguished Members sitting behind me who were on that Committee. But I am not sure that we have thought enough about how to inform people about the route they can take under clause 203, so I will ask my officials to look at that again. There is an information challenge here, because it is all very well for the cognoscenti—there are many of them in this room—to know about such things, but I am not sure that that is good enough. So I will meet the hon. and learned Lady halfway—halfway in my judgment, at least, even if not in hers—by ensuring that we look closely at how well informed people are about their ability to go down the route I have set out. On that basis, I ask her to withdraw the amendment.
Joanna Cherry
I wish to insist on the amendment.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 118, in clause 53, page 42, line 14, leave out subsection (1) and insert—
“(1) A Judicial Commissioner may grant a communications data access warrant where the judicial commissioner considers—
(a) that it is necessary to obtain the data for the purposes of a specific investigation or a specific operation, and
(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved.
(1A) The grant of a warrant is subject to restrictions set out in the rest of this Part.”
The Chair
With this it will be convenient to discuss the following:
Amendment 125, in clause 53, page 42, line 25, at end insert—
“(1A) The Judicial Commissioner may grant a warrant on application from—
(a) an officer from a relevant public authority involved in the relevant investigation; or,
(b) an individual designated by the relevant public authority to make applications for warrants to the Judicial Commissioner.”
Amendment 126, in clause 53, page 42, line 25, at end insert—
“(1B) A warrant must—
(a) name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates; and
(b) describe the investigation or operation to which the warrant relates.”
Amendment 229, in clause 53, page 42, line 26, leave out from beginning to end of line and insert—
“A warrant granted by a judicial commissioner may authorise the applicant or a telecommunications operator to”.
Amendment 119, in clause 53, page 42, line 26, leave out “designated senior officer” and insert “warrant”.
Amendment 120, in clause 53, page 42, line 32, leave out subsection (3).
Amendment 121, in clause 53, page 43, line 4, leave out “authorisation” and insert “warrant”.
Amendment 122, in clause 53, page 43, line 14, leave out “authorisation” and insert “warrant”.
Amendment 123, in clause 53, page 43, line 16, leave out “authorisation” and insert “warrant”.
Amendment 124, in clause 53, page 43, line 25, leave out “authorisation” and insert “warrant”.
Amendment 130, in clause 55, page 45, line 15, leave out “authorisation” and insert “warrant”.
Amendment 128, in clause 55, page 45, line 16, leave out subsection (1)(a).
Amendment 132, in clause 55, page 45, leave out line 31.
Amendment 129, in clause 55, page 45, line 37, leave out subsection (4).
Amendment 133, in clause 57, page 46, line 20, leave out “authorisation” and insert “warrant”.
Amendment 134, in clause 57, page 46, line 24, leave out “authorisation” and insert “warrant”.
Amendment 146, in clause 72, page 57, line 27, leave out from “by” to “and” in line 29 and insert “a warrant”.
Amendment 147, in clause 72, page 57, line 30, leave out “authorisation or notice” and insert “warrant”.
Keir Starmer
We are now moving to a different part of the Bill and to a very important provision. I apologise if it takes some time, but we are moving to a significant set of matters that need to be considered together. The amendments to clause 53 have to be seen in context, and the context is the retention powers later in the Bill, which I will highlight in a moment.
I want to put the position of the Labour party on this and other provisions clearly on the record. It is accepted that there are circumstances in which it is necessary to retain or obtain the data of individuals who are not necessarily targets themselves, so that at a later stage that data can be accessed for a specific purpose or reason—so we have a broad retention power and then a much more narrowly defined access provision. Clause 53 is the access provision. The retention provision is clause 78 and I direct the Committee’s attention to that clause because that is where this all starts.
Under clause 78 the Secretary of State can require “relevant communications data” to be retained by “any description of operators”, and she can require the retention of
“all data or any description of data”
so long as they come within
“one…of the purposes falling within paragraphs (a) to (j) of section 53(7)”.
The Secretary of State’s very wide retention power is exercised by issuing a notice, the effect of which is to require the retention of potentially wide-ranging and extensive data for 12 months. That is an extensive retention provision. There is some provision for filtering the data, but the power to access the data is in clause 53.
On the face of it, the retention powers are quite wide and will necessarily involve retaining data of individuals who are not targets or subjects, never will be and were never intended to be—in fact, all of our data, in many respects. Our long-standing position is that to justify that potentially very wide power, which is a serious cause for concern to many people, it is critical that at the point of access there is a clearly defined and high threshold and clear safeguards. In other words, if one collects a lot of data, at the point of accessing it one must go through a much more rigorous set of preconditions with effective safeguards. Clause 53 allows such access.
On clause 53(1), the first thing to be observed is the person who is to grant authorisation—the holder of the keys to the gateway—to allow any of the activities in subsection (2), engaging in conduct
“for the purpose of obtaining the data from any person”,
and further action under subsection (4), is not the Secretary of State or a judicial commissioner, but a “designated senior officer” of a relevant public authority. That is an immediate cause for concern. There is a very wide power to retain, so it is necessary to have really strict preconditions before access, and the keys are held by a designated senior officer—nobody of higher rank than that.
To understand what that means, I direct Members’ attention to schedule 4, although I should perhaps go via clauses 61 to 64, which make further provision in relation to relevant public authorities and designated senior officers. The question is: who is a designated senior officer and what are the public authorities concerned? For that, we go to schedule 4 on page 204, where there is a long list of the public authorities and designated officers who can access the relevant data.
There we see some familiar bodies that one would expect to find in such a schedule, but running one’s eye down the list brings one to the Royal Navy Police, the Royal Military Police, and, further down, the Department of Health. Across the page are the Ministry of Justice, the Department for Transport, the Competition and Markets Authority, and the Criminal Cases Review Commission. I will pause there. In the Criminal Cases Review Commission, the person who can authorise access to data is an investigations adviser. With all due respect to the investigations advisers in the CCRC, that is a very low level of authorisation to access or obtain data that has been retained.
There are other examples. In the Financial Conduct Authority, any head of department in the enforcement and market oversight division has authorisation. Over the page, in a fire and rescue authority the watch manager provides authorisation, and in the Food Standards Agency it is a grade 6 employee. The Gambling Commission can access data under this provision, as long as a senior manager says so. These are really worrying levels of authorisation in relation to personal data: a senior manager in the Gambling Commission has the role of deciding whether your data or mine can be accessed. Dropping down the page, in a national health service trust it is the director of operations, or a control and communications manager, or the duty manager in ambulance trust control rooms who can authorise access to the relevant data, and so on and so forth. In the Office of Communications, it is the senior associate.
The first thing that is striking about clause 53 is the insufficiently senior level at which authorisation may be granted. Access may be authorised if
“a designated senior officer of a relevant public authority”
thinks
“that it is necessary to obtain communications data for a purpose falling within subsection (7)”
and that it is relevant for
“a specific investigation or a specific operation or…testing…The designated senior officer may authorise any officer of the authority to engage in any conduct which…is for the purpose of obtaining the data from any person”,
and so on. That is a real concern. Will the Solicitor General explain why it is thought appropriate to drop from what until now have been quite high levels of authorisation and scrutiny, with strict tests, right down to
“a designated senior officer of a relevant public authority”?
I have dealt with who can authorise access; let me turn now to the purpose of gaining access. What is it that the designated senior officer has to be satisfied about? That takes us straight to clause 53(7), which states that
“It is necessary and proportionate to obtain communications data for a purpose falling within this subsection if it is necessary and proportionate to obtain the data—”
Before I go down the list that follows in clause 53(7), I remind the Committee that the case involving David Davis, Tom Watson and others is before the Court of Appeal. We do not know the outcome of that case. Of course, it does not relate to these provisions, because they are not in force, but it relates to provisions that are not dissimilar to these. The question that arises in that case is: what is the true interpretation and effect of the Digital Rights Ireland case, in which it was found that one of the EU directives was invalid? The question before the Court of Appeal, which was critical to the European Court’s analysis in the Digital Rights Ireland case, is whether a regime for retention of data—a regime similar to the regime in the Bill—requires safeguards. The two safeguards in the Digital Rights Ireland case of most relevance to this clause are the safeguard that there must be a serious offence threshold for access and the requirement that there must be prior judicial oversight.
I am aware of the submissions and counter-submissions in that case on how those safeguards apply—whether they apply generally across the piece or whether they are case-specific. I am aware of what the divisional court said and what the Court of Appeal has said so far. In addition, I recognise that it would not be right for me to say that on the analysis of the Court of Appeal so far it is established that it is a precondition that the threshold must be a serious offence or that there must be prior judicial oversight. I do not advance an argument on that basis, because any fair reading of the Court of Appeal does not allow me to do so, and I do not do so. However, what it does is set up a challenge, which is what all of the courts have been concerned with in the Tom Watson and David Davis case, namely whether the safeguards are sufficiently rigorous and strict. The question is whether they have to be those particular safeguards or whether other safeguards could achieve the same balance.
Joanna Cherry
Where we have encountered the phrase “economic wellbeing of the UK” before, there has been another subsection to say that that only applies to persons outside the British islands, but there is no such corollary in clause 53. Does the hon. and learned Gentleman agree that that is worrying? If I am wrong, no doubt I will be corrected by the Government.
Keir Starmer
I am grateful for that intervention. If the Solicitor General can point to such a provision, I would be interested to see it. On the face of it, the clause allows designated senior officers within a public authority to obtain communications data in the interests of the economic wellbeing of the UK without that further qualification.
Subsection (7) then states that data can be obtained
“in the interests of public safety…for the purpose of protecting public health”
or,
“for the purpose of assessing or collecting any tax”.
We then come to paragraph (g), on which I want to spend some time. It states that data can be obtained
“for the purpose of preventing death”—
that would obviously be a high threshold—
“or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health”.
The threshold is way, way down. There are many ways in which a person’s physical or mental health could be damaged. The Bill, if passed, will authorise access to communications data without any threshold as to the level of damage or injury.
Suella Fernandes (Fareham) (Con)
I appreciate the hon. and learned Gentleman’s analysis, but does he agree that obtaining communications data is one of the less intrusive powers contained in the legislation, but such data are very helpful for setting the scene and planting the seed for investigations? That has to be borne in mind when looking at the authorisation regime, because this is different from other powers.
Keir Starmer
Let me take that in stages. I accept that accessing communications data is in a different category and order from, say, the interception of the contents of communications. I also accept the proposition that communications data are used in many cases involving serious crime. I will go further than that: it is rarely possible to bring and to conclude cases of serious criminality without reliance on communications data. I have no in-principle objection to communications data being made available and being used. My concern is the very low level of sign-off required to access those data and the lack of any meaningful threshold in subsection (7); there simply is not one. Whether or not a meaningful threshold is achieved by the insertion of the word “serious”, as I propose in my amendment, or some other word, if we simply say that it could be necessary and proportionate to access communications data to prevent any crime or damage, we are proceeding on a basis for which it is very hard to think of any circumstances in which it would be difficult or impossible to justify obtaining communications data. It just is not a set of thresholds.
Dealing with miscarriages of justice and situations in which a person has died and so on, and
“for the purpose of exercising functions”
are listed in the subsequent paragraphs. My central point is obvious but important. I realise how necessity and proportionality apply, but on any reading of subsection (7) there is no threshold. I think there is a risk for the Government here. I appreciate the direction of travel of the Court of Appeal, but does anybody seriously think that the jurisprudence is not going to develop to a point where there is a threshold that is thought to be appropriate? It is one thing to say that we do not necessarily have to have a threshold of serious crime, but to go from that to saying that we do not have to have any threshold at all is to invite problems, if these provisions are passed.
Suella Fernandes
It appears that the hon. and learned Gentleman is dismissing the necessary hurdles of necessity and proportionality in satisfying the tests. They are obviously going to relate to and be thresholds, so is it not wrong to say that there is no threshold in the clause?
Keir Starmer
I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.
There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.
I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can
“authorise any officer of the authority to engage in any conduct”.
It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.
The breadth of what can be done is outlined in clause 53(5), which states:
“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—
so it goes beyond the specific authorisation to the facilitation—
“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”
It is a very broad provision.
That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.
The Solicitor General
It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.
It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.
The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.
Joanna Cherry
It is interesting that the Solicitor General chooses the example of surveillance in a drugs operation to tell us what we are talking about. That would be a serious crime, but as the shadow Minister has drawn attention to, clause 53(7) allows authorisations to obtain data not just for serious crimes, but for a whole plethora of things, including protecting public health, taxes, duties, levies and so on. Notwithstanding his opening comments, does he not accept that it is telling that the example he chooses is one of serious crime?
The Solicitor General
Not all drugs supply is necessarily serious. We might be talking about a particular class of drugs, which might not qualify within the criteria. Is the hon. and learned Lady seriously suggesting that we should not have the capability to draw evidential leads on cases of harassment, stalking or other offences that we all know are a particular problem when it comes to the abuse of victims?
Joanna Cherry
Stalking is, in my respectful submission, a serious crime. The thrust of these amendments is that the authorisation should be for serious crime, and by a judge.
The Solicitor General
The hon. and learned Lady wants to have her cake and eat it. The hon. and learned Member for Holborn and St Pancras said he wants a much higher threshold. I am sorry, but we cannot play around with this. The Committee is dancing dangerously on the edge if it seeks, in an ad hoc way, to try to subjectively define what serious crime is.
Keir Starmer
I want to be clear with the Committee. In fairness to the Solicitor General, I can see the argument that, for harassment, there can be serious consequences for the individual. I had to deal with a number people in that situation and I do not underestimate for a moment the serious consequence that a series of minor actions can have. I do not think that necessarily means that we cannot have a serious crime threshold. I would be willing to work on what that threshold would look like, but I should not be taken as thinking that harassment, for example, cannot have serious consequences.
The Solicitor General
I am grateful to the hon. and learned Gentleman for that concession. It is important and it is not straightforward, and that is why I am afraid, as currently constructed, these amendments are deficient.
If I can develop my argument, I would like to give an example from Gwent police—a force that I know very well and have prosecuted on behalf of for the Gwent CPS on many occasions. Last November, a female victim returning home from a night out was approached by an unknown male who proceeded to sexually assault her. As a result of her cries, two witnesses approached and, thankfully, the male fled the scene before the offence was completed, serious though it was. An urgent press release was issued, along with CCTV footage of the offender. As a result, a member of the public called the police stating that she recognised the offender, who had given her his number. Investigators acquired subscriber data on that number and identified a suspect, who was subsequently arrested. In court, the offender pleaded guilty and received a 12-week prison sentence that was suspended for 12 months, and was placed on the sex offenders register for five years. I think we would all agree that that sounds very serious.
The Solicitor General
But is it? We have got to be absolutely clear. None of us would want that type of offence to fall outwith any of the criteria in these provisions—I am sure that would be the case.
Peter Kyle (Hove) (Lab)
Proportionality was a central part of the discussion on Second Reading, and we received many reassurances from the Government. My hon. and learned Friend the Member for Holborn and St Pancras has made a powerful point about the use of these powers in minor crimes. The Bill lowers the threshold to
“damage to a person’s physical or mental health”
or the potential thereof. Will the Minister tell us what crime or potential crime does not pose damage to a person’s physical or mental health, or have the potential thereof?
The Solicitor General
Of course, there are plenty of offences that do not involve violence or the threat of violence, such as fraud, although I understand that the potential consequences of some fraud can cause stress. May I reassure him that the test of necessity and proportionality in clause 53(7) remains very much at the centre of everything? I would not want him to be misled into thinking, as has perhaps been suggested by some of his Front Bench colleagues, that this is a free-for-all; far from it.
The Solicitor General
No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:
“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”
Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.
I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.
Lucy Frazer (South East Cambridgeshire) (Con)
Does the Solicitor General think that one of the reasons that David Anderson supported these clauses is the benefit of communications data in Operation Magpie, to which he refers specifically in his report, when Cambridgeshire County Council protected more than 100 elderly and vulnerable persons from attempts to defraud them by using communications data powers?
The Solicitor General
I am grateful for that powerful example provided by my hon. and learned Friend.
It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:
“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—
the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.
The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.
Keir Starmer
I rise only because this is an important point about how the powers will come to be exercised. It is of course possible to say that the precise wording of the amendment might not work in certain circumstances—all but sentences of 10 weeks or less are serious cases, and so on—but I do not want us to miss the point. The challenge to the Solicitor General is that there is no threshold. It is perfectly all right to say that the amendment does not necessarily achieve in precise terms the right level of seriousness, but it is not right simply to push back at the notion that there must be some threshold in the measure that is meaningful, which at the moment there is not.
The Solicitor General
I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.
I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.
I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.
I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.
Joanna Cherry
Will the Solicitor General accept that there have been severe concerns lately about what turned out to be rather destructive surveillance activities by the Metropolitan police in relation to covert human intelligence sources? Does he agree that it is highly unlikely that such practices would have occurred if there had been a system of prior judicial authorisation, rather than internal authorisations?
The Solicitor General
The hon. and learned Lady knows, of course, that that matter is now being investigated, in an inquiry led by Lord Justice Pitchford. I am not saying that she is not entitled to mention it, but it really is a different set of circumstances. That particular means—the covert use of human intelligence sources—is not what we are talking about, with the greatest respect. We are talking about ensuring that authorities prescribed by statute have the capability to continue finding the sorts of evidential lead that until now have been almost exclusively the province of conventional telecommunications.
Joanna Cherry
Perhaps I can put another example to the Solicitor General. Towards the end of last year, it was revealed that, due to what a judge labelled systemic internal failings in how the National Crime Agency applied for a warrant, a number of trials were at risk of collapse. Earlier in the year, Mr Justice Hickinbottom lamented what he called an
“egregious disregard for constitutional safeguards”
within the NCA, in the case of Chatwani and others v. the National Crime Agency and others. Those are examples of where the system is not working.
The Solicitor General
I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.
I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.
Keir Starmer
I will not repeat the concerns that we raised. Proceeding with a clause that has no seriousness threshold, however expressed, is fraught with difficulties, but the Minister has indicated that he will consider some of the issues and I want to reserve this issue for a later stage, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I beg to move amendment 228, in clause 53, page 42, line 21, leave out subsection (1)(b)(ii).
The Chair
With this it will be convenient to discuss the following:
Amendment 231, in clause 53, page 43, line 5, leave out subsection (4)(d).
These amendments to Clause 53 provide that in order to access communications data, a relevant public authority must seek a warrant from a Judicial Commissioner rather than undertake a system of internal authorisation. These amendments also provide for warrants to authorise conduct of a relevant public authority and require steps be taken by a telecommunications operator, removing the need for separate “authorisations” to public authorities and “authorisation notices” to telecommunications operators.
Amendment 131, in clause 55, page 45, line 24, leave out subsection (2).
Joanna Cherry
I am very much in agreement with everything that the hon. and learned Gentleman said on the last group. The Scottish National party’s position is that access to communications data should be by means of a judicial warrant. We share the concerns that he articulated about the lack of a proper threshold in clause 53(7). I do not intend to press these amendments to a vote. I associate myself with his position, and I reserve my position on this matter for a later stage. This is an absolutely crucial clause, and it is extremely concerning, as he said, that there is no proper threshold in it.
The Solicitor General
I am grateful to the hon. and learned Lady for her succinct remarks. I will simply make the following observations about her amendment. It would remove the ability of the relevant public authorities to apply for communications data authorisation to test equipment or for technology development purposes. It is vital that those who are authorised to acquire communications data are able to test existing systems and to assist the development of new equipment or systems. Without that ability, we will not know whether the equipment will provide the required information in a real-life investigation, and nor will we be able to fix errors in systems where they are detected. We fear that that could have a seriously detrimental effect on our law enforcement agencies’ ability to prevent and detect crime and may lead to mistakes, which are in nobody’s interest—least of all that of the public, whom we serve. Therefore, this is a vital further safeguard. With respect, we are somewhat puzzled about why the amendment was tabled, but we heard the hon. and learned Lady and we respect her position. For those reasons, we oppose the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 110, in clause 53, page 43, line 39, after “detecting”, insert “serious”.
The Chair
With this it will be convenient to discuss the following:
Amendment 109, in clause 53, page 43, line 39, leave out “or of preventing disorder”.
Amendment 111, in clause 53, page 43, line 40, at end insert
“which includes to assist in investigations into alleged miscarriages of justice”.
Amendment 112, in clause 53, page 43, line 41, leave out subsections (7)(c) to (f).
Amendment 114, in clause 53, page 44, line 1, after first “or”, insert “serious”.
Amendment 115, in clause 53, page 44, line 1, after “any”, insert “serious”.
Amendment 116, in clause 53, page 44, line 2, after “any”, insert “serious”.
Amendment 117, in clause 53, page 44, line 3, at beginning insert “serious”.
Amendment 113, in clause 53, page 44, line 5, leave out subsections (7)(i) and (j).
Keir Starmer
I have covered my concerns that relate to these amendments, and the Solicitor General has dealt with them in his submissions. For the same reasons as on the first group of amendments, I want to take this matter away and I reserve my position. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 53 ordered to stand part of the Bill.
Clause 54
Additional restrictions on grant of authorisations
Keir Starmer
I beg to move amendment 127, in clause 54, page 44, line 20, leave out subsections (1), (2) and (3).
This is formally my amendment and therefore my embarrassment, because I do not think it achieves its intended purpose. I do not intend to press it to a vote. When I looked at it again in the early hours of this morning, I could see that it does not achieve whatever I hoped to achieve.
Keir Starmer
I will make such comments as I have during the clause stand part debate.
The Solicitor General
I am grateful to the hon. and learned Gentleman. It was puzzling me, and he has solved the mystery. The amendment seemed to remove the safeguard, which I am sure he does not want to do.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I do not oppose the removal of safeguards from the Bill. However, this is the first time that internet connection records have raised their head in the Bill and I feel compelled to foreshadow the more detailed arguments that will be made when we reach clause 78.
The collection of internet connection records is one of the fundamental changes that the Bill seeks to introduce, and subsections (4), (5) and (6) of the clause contain the first mention in the Bill of such records. I think that I am correct in saying that they are in fact only mentioned in one further clause—clause 78.
Clause 54(6) sets out to define an internet connection record but fails spectacularly to do so because of its widely drawn language, which clearly attempts to cover every imaginable base. The Scottish National party understands that the police and other authorities need powers befitting the digital age but, as legislators, we cannot pass a clause with such a significant impact on civil liberties—on personal privacy—without a clear definition in the Bill.
The industry has made it clear that it is willing to work with the Government to try to help implement ICRs. The trouble is that the industry does not know what ICRs are—and it looks like the Government do not know either. I addressed that point in quite a lot of detail on Second Reading. It is interesting that the Internet Service Providers Association says:
“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”
I very much associate myself with those comments.
We cannot legislate in a vacuum and if the Government cannot provide further detail and clarity so we all know what an internet connection record is and what we are legislating for, we will have no option but to try to remove the collection of such records from the Bill through our amendment to clause 78. But the Scottish National party objects to the inclusion of internet connection records not just because of the difficulty of defining them—in my speech on Second Reading, I suggested that they are not at all a sort of internet replication of a phone record, as the Home Secretary seemed to think they were—but because of their intrusiveness. They would provide a detailed record of every internet connection of every person in the UK over 12 months, with a log of websites visited, communications software used, systems updates downloaded, desktop widgets used and every mobile app used, and logs of any other device connected to the internet, such as games consoles or baby monitors. I said in that speech that that would be “fantastically intrusive” and I stand by that.
Law enforcement bodies can currently obtain similarly extensive internet connection data for specific surveillance targets in several ways. First, they can request that telecommunications operators in the future retain the data of specific targets. Secondly, they can request retrospective internet connection data on specific targets from operators who temporarily store such data for their own business purposes. Thirdly, if they are seeking to prevent or detect serious crime, they can request data or assistance from GCHQ, which has a remit to provide intelligence for those purposes. Intelligence sharing to tackle online child sexual exploitation will be fortified by the establishment in November last year of the National Crime Agency and GCHQ joint operations cell.
The Intelligence and Security Committee noted in recommendation I of its report on the draft Bill that the delivery of ICR proposals
“could be interpreted as being the only way in which Internet Connection Records may be obtained. However, this is misleading: the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data.”
The ISC recommended that the Bill be amended in the interests of transparency, but no transparency has been provided.
The Scottish National party believes that the case supporting this huge expansion of data collection by internet service providers and its benefit to law enforcement is deeply flawed and contradicted by the available evidence, and that it has been accurately described as overstated and misunderstood.
I reiterate that there are no other “Five Eyes” countries in which operators are or have been forced to retain similar internet connection data. In Europe, as we heard the Danish tried it and decided that it was not of any utility. They thought about trying it again recently, but decided not to repeat the experiment. David Anderson noted in his report “A Question of Trust”, on page 265, about the collection of that sort of internet connection data that
“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US.”
He therefore said that a “high degree of caution” should be in order.
There is also a legal issue with the mooted collection of internet connection records, because in 2014 the Court of Justice of the European Union ruled in the Digital Rights Ireland case that indiscriminate collection and storage of communications data is a disproportionate interference with a citizen’s right to privacy. I therefore argue it is unacceptable that the Government are attempting to bypass that ruling to extend their policy of blanket data retention.
It will no doubt be argued that, provided there are sufficient safeguards, the Court’s concerns from that case do not apply. However, as we just heard, there are not independent safeguards because we do not have judicial authorisation for access to internet connection records. We have instead a long list of public officials who have access to such records through internal procedures. I want to make it clear that I do not seek to impugn the integrity of public officials, but the reality is that their primary concern will relate to the operational capacity of their agency. That is a perfectly understandable matter of organisational culture, but that is also a reality that mitigates in favour of independent third-party authorisation.
If we collect internet connection records, we face falling foul of European Union law. We will also face falling foul of European Union law if we collect them without proper independent authorisation. I oppose clause 54 because it is the first point at which internet connection records rear their head in the Bill and the Scottish National party is not convinced that the Government have made a case for internet connection records. We are not convinced that there are not alternative routes to get at the necessary information and we are concerned that the collection of such records will be in violation of the law and of civil liberties.
Keir Starmer
We shall not seek to vote down the clause, but I want to raise some serious concerns about internet connection records because, as has been said, I think this the first time that they appear in the Bill. Subsection (6) is important because that provides the definition that
“‘internet connection record’ means communications data which…may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and…comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication”.
That is a wide definition. I listened carefully to the evidence of senior law enforcement officials about their ask on internet connection records, and they made it clear that they were concerned to have the who, the how, the when and the location.
I appreciate that there are other provisions—in fairness, I will come to those—but my concern is that that definition is much wider than their ask. That is important because subsection (4) deals with the point of access to internet connection records and what the designated senior officer can authorise. I accept that that subsection contains the restriction that internet connection records cannot be obtained or accessed unless one of the purposes identified is complied with—
“which person…which internet communications service…where or when”.
That has a resemblance to what senior law enforcement told us was their ask, but the problem is that the definition in subsection (4) is much wider. It might be asked whether that matters. Well, it does matter because clause 78—the retention clause—as we have observed, provides that the Secretary of State may issue a retention notice in relation to relevant communications data. Clause 78(9) makes it clear that relevant communications data may be used to do a list of things—I will return to the list—and that internet connection records are included. That definition of internet connection records crops up again in clause 78(9). Therefore, anything within that description, so long as it also complies with the other bits of the subsection, may be retained.
The Solicitor General
It is important that we go through this carefully. The shadow Minister talked about browsing history. The full history does not constitute comms data; it is not an ICR for the purposes of this legislation. It is like looking at everything after the forward slash. Let us take the example of a website such as telegraph.co.uk: the fact that a person visited the website may be one thing, but everything after the forward slash—the detail of what the person is doing—is not an internet connection record for the purposes of the Bill.
Keir Starmer
I am grateful to the Solicitor General for that reply. The same point was made on Second Reading by the Home Secretary and was also made in Committee, but I have a difficulty with it that is important to put on the record. Where are the words in the Bill that result in what the Solicitor General said? I am concerned, because I cannot see them.
I accept that, when it comes to accessing internet connection records, there is the further test in clause 54(4). At the moment, a constituent might say, “Will my internet connection records and browsing history be kept?” People are concerned about whether there is a record of what they have looked at on the internet. They feel very chilled by that. The Solicitor General says that it goes so far but no further. That is to give people comfort and I understand why it is said. The difficulty I have is finding the precise words in the Bill that give effect to that proposition.
The Solicitor General
Is not the real question whether the authorities will have access to that history without due process? Therein lies the rub. As I have said to the hon. and learned Gentleman, the full browsing history will not be capable of being accessed without further warrantry.
Keir Starmer
I understand the Solicitor General’s point, which is that when it comes to access, there is a further, stricter test. I absolutely understand that and I accept that clause 54(4) is there for a purpose. The question that my constituents and I, and others, want answered is, “What about what is being retained?” There is a chilling feeling if it is being retained. The comfort of the Government saying, “Well, we are keeping everything but we will not look without a stricter test”, is, of course, a comfort, but it is not that much comfort to many concerned individuals.
Mr Hayes
I support the Solicitor General’s view—I do not want the hon. and learned Gentleman to be caught in a pincer movement by the way. None the less, clause 223(6) is pretty clear, is it not? It mentions anything that
“might reasonably be considered to be the meaning (if any) of the communication”.
That seems very helpful. I know that that clause is in the other part of the Bill but, of course, it relates to the content in exactly the way he describes.
Keir Starmer
I am grateful to the Minister for pointing that out but that was the route that I trod a few days ago when I was preparing my submissions. The problem is that content is given the description that he just set out, but it also says,
“any meaning arising from the fact of the communication or from any data relating to the transmission of the communication is to be disregarded, and (b) anything which is systems data is not content.”
That obviously led me to have a look at what systems data are, for which we have to go to clause 225(4), which states that systems data
“means any data that enables or facilitates, or identifies or describes anything connected with enabling or facilitating, the functioning of…a telecommunication system”.
It is true, and I accept, that an internet connection record does not include content in the form set out in 223(6), but then one gets to systems data, and part of it comes back out again. It would be very helpful if someone were to attempt to describe, by reference to the Bill’s provisions, why it is said that, at the point of retention, the provision does not include web browsing history. That is a question that many people would like answered. I leave that challenge on the table for the Government.
I rose to say that at this late hour and it is a complicated point, but it goes to the heart of the question about ICRs. At the moment, it is being framed in the sense of, “Well, they won’t look at it unless”, but people are genuinely concerned about the retention of their browser history.
The Solicitor General
As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.
Joanna Cherry
Setting the Danish experiment to one side, can the Solicitor General tell us why the other “Five Eyes” countries are not requiring operators to retain similar internet connection data? Why are no other western democracies doing that?
The Solicitor General
The simple answer is that they know there are technological challenges and that someone must start somewhere. I am proud that the United Kingdom is trying to set the correct example. It may be that the detail is more than we can do and this is why we are having scrutiny and debate—I warmly welcome that—but to suggest that because it is difficult we should not take a lead is a counsel of despair. That is not good enough when it comes to the challenges facing us with the development of technology.
The hon. and learned Member for Holborn and St Pancras asked some proper and detailed questions, and rightly contrasted and compared various parts of the Bill. As lawyers and legislators, we must be careful not to become too prescriptive when defining the technology, which is why the combination of the framework in the Bill and the code of practice to which the hon. and learned Member for Edinburgh South West referred—paragraph 2.63 helpfully sets out what an ICR might consist of—gives sufficient clarity and flexibility operationally to keep pace with developments in technology. We must necessarily be technology neutral and careful when making definitions.
We worked extremely closely with law enforcement agencies about their needs, including the Joint Committee’s work, and they have been clear that the Bill now reflects those needs. Communication service providers have also developed their views in recent months. They confirmed in evidence to the Committee that they understand exactly what they are being asked for. My strong contention is that what we have now is a clear definition of internet connection records and helpful support from the codes of practice.
Let me deal with clause 54 directly. It sets out clearly the four operational purposes for which a designated senior officer may grant an authorisation for a relevant public authority to obtain an internet connection record. All those purposes have been endorsed by the Joint Committee. Importantly, it specifically advanced the fourth purpose in its conclusions. That fourth purpose covers connections that do not disclose a crime or nefarious purpose, but with other material can help to build up a series of evidential leads to the effective detection of crime.
I am grateful for the examples that the Digital-Trust gave to all members of the Committee. Many of us are familiar with the organisation and it is supported by, among others, Harry Fletcher, who was deputy general secretary of the National Association of Probation Officers. His work, with that of others, to combat stalking and harassment is well known to me. I worked closely with him on the draft Bill that became law as the Protection of Freedoms Act 2012, and now on the work that addresses stalking. The trust’s example is powerful. Many stalkers sadly indulge in sending unwanted gifts to their victims. For example, they may habitually order flowers to make the point that they are still there. The victim may not want such gifts, but they are part of the stalking behaviour.
The internet connection record that discloses that someone had gone to a florist is innocuous, but it could be vital lead evidence in building a picture of someone’s stalking and harassing behaviour. That is why the Digital-Trust strongly supports clause 54(4). It can see the operational merit in ensuring that such purposes are included. It is a stark and clear example of the dangers of over-limiting the criteria within which the investigating authorities can act.
The hon. and learned Gentleman is quite right to talk about the concerns we all share about the unwarranted retention of masses of information that would constitute an intrusion into the lives of millions of people. Let us not forget that the Government will not be retaining the information. The information will be at arm’s length from Government. There is a filter system designed not only to screen out but to destroy data that is extraneous to the investigation. Crucially, the full web browsing history does not constitute an internet connection record. It is therefore not covered by the provisions and would have to be subject to the sort of warrantry that Members of this House understand to be necessary to protect the privacy of the people we serve. For those reasons, I strongly commend clause 54 to the Committee.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I wish to speak briefly on clause 58. I indicate that I will also cover clauses 59 and 60, which I also oppose. The clauses provide for the establishment and use of a filter to gather and analyse communications data. They provide for a communications data request filter, which was a feature previously proposed in almost identical terms in the rather unpopular draft Communications Data Bill. The only change made is that under clause 58(5), which states that the Secretary of State
“must consult the Investigatory Powers Commissioner about the principles on the basis of which the Secretary of State intends to establish”
the filter.
The request filter essentially is a search mechanism that allows public authorities to conduct simple searches and complex queries of the databases that telecommunications operators will be required to build and hold. The Joint Committee on the Draft Communications Data Bill described the request filter in that Bill as
“a Government owned and operated data mining device”,
which, significantly, positions the Government at the centre of the data retention and disclosure regime. Access to the filter and the data it produces would be subject to the same self-authorisation processes as all communications data. In practice, the request filter would be a search engine over an enormous federated database of each and every citizen’s calls, text records, email records, location data and internet connection records. Those would be made available to hundreds of public authorities.
I am sure the Government will, as they have in the past, be keen to portray the request filter as a safeguard for privacy. However, the processing of such a huge amount of personal data, as permitted by the request filter, is a significant privacy intrusion. It is not only me who thinks that; the Joint Committee on this Bill noted that there were
“privacy risks inherent in any system which facilitates access to large amounts of data in this manner.”
When I asked the Solicitor General why other countries do not do that, he said that the lead must start somewhere, but I do not want my constituents to be guinea pigs for such a system. I can tell from my mailbox that many of my constituents are very concerned about such huge amounts of personal, private data being held and analysed in that way. They want to see serious crime tackled, but not at the expense of their privacy.
A balance has to be struck, and I fear that the request filter is more of an intrusion into privacy than a safeguard for it. It is a portal with the power to put together a comprehensive picture of each of our lives. We should not misunderstand that that is what the filter can do. It raises many of the same concerns as a large and centralised store, with the added security concerns of protecting multiple distributed databases.
Public authorities will have a permanent ability to access the request filter, which will make it an enticing and powerful tool that could be used for a broad range of statutory purposes. The ability to conduct the complex queries that the request filter will allow for could increase the temptation to go on fishing expeditions—that is, to sift data in search of relationships and infer that concurrences are meaningful. That was one of the many concerns expressed by the Joint Committee on the Draft Communications Data Bill about the request filter proposal.
With the request filter power, authorities could use communications data to identify attendees at a demonstration and correlate that with attendance at other public or private locations in a 12-month period, or identify those regularly attending a place of worship and correlate that with access to online radio websites, inferring risk. Those examples show that the new ability risks casting undue suspicion on thousands of innocent citizens and mining their personal contacts for patterns, which is an unacceptable intrusion into the privacy and civil liberties of our constituents and British citizens generally.
Keir Starmer
I will not be long, but I want to raise some concerns about the provisions. It is clear—the Minister will correct me if I am wrong—that the arrangements are to assist a designated senior officer who is considering whether to grant an authorisation, and therefore has got to that stage of the exercise, and more broadly to provide for effective ways of obtaining communications long before there is serious consideration of a particular authorisation. Subsection (1)(a) applies in relation to the contemplation of a possible authorisation, whereas subsection (1)(b) is a much wider way of organising the data so that someone can later find what they want more easily.
The arrangements are made by the Secretary of State but then exercised by the designated senior officer, and we have discussed who will be doing that. It is so concerning because the provision allows for the designated senior officer, who in many cases will be not a high-ranking individual in a public authority, to start to organise the data that have been obtained under a retention power. It is therefore a very wide ranging power indeed.
Mr Hayes
We can probably satisfy the need to address the concerns that have been raised. First, let us be clear about privacy. To restate what I said when we began our consideration of the Bill, because there is no one’s canon that I like to draw on more than my own,
“privacy…is at the heart”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 90.]
of all we do. The defence of private interests and the protection of the public are the essence of the Bill. This filter is, of course, an additional safeguard. It will allow public authorities, when they are dealing with such a request, to consider on a case-by-case basis what needs to be released and, by implication, what does not.
The Joint Committee on the Bill considered this matter in some detail and concluded at paragraph 38:
“We welcome the amendments that have been made to the Request Filter proposal. They constitute an improvement on that which was included in the Draft Communications Data Bill.”
There is, however, an argument about the process once a request has been made, and that is the argument made by the hon. and learned Member for Holborn and St Pancras.
The code of practice goes a long way towards making things clearer in chapter 9, paragraphs 9.1 to 9.4. Indeed, that chapter describes the request filter as
“an additional safeguard on the acquisition of communications data”
that will work in tandem with other safeguards to
“limit the volume of communications data being provided to a public authority.”
Therefore, the filter is a way of eliminating unnecessary data from release.
Nevertheless, I hear what the hon. and learned Gentleman says about ensuring that the permission to do that is in the hands of the right people and dealt with in the right way. It might be that we can say a little more about that in the code of practice. I will take a look at that, because there is an argument for refining that part of the code.
In response to the hon. and learned Member for Edinburgh South West, it is clear that public authorities will sometimes need to make complex inquiries. For example, they may ask multiple questions of multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime at different places and at different times. The complexity of the requests is the context in which the application of the filter will be applied.
Currently, public authorities might approach communications service providers for location data to identify the mobile phones in specific locations at the relevant times to determine whether a particular phone and a particular individual is linked to three offences. To get to the end that I have described, very large amounts of data would be required, so the filter process is both a safeguard—a protection—and a way of making the system more practicable. For all of those reasons, it is an important part of the Bill. Having said that, I hear what is being said about the process rather than the principle of it. Maybe we could look at the process, but I am absolutely committed to the principle and on that basis I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I oppose the clause for the same reasons and I do not think I need to elaborate further.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I oppose the clause for the same reasons.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Seventh sitting)
Tuesday 19th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Minister for Security (Mr John Hayes)
On a point of order, Madam Chairman. I will be writing to you today to summarise all of the areas on which the Solicitor General and I have offered to provide more information during the course of our sittings. I will do that each week, with a view to informing the debate and ensuring that all members of the Committee have the information.
The Chair
Thank you very much, Minister.
Clause 61
Relevant public authorities and designated senior officers
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 135, in clause 61, page 49, line 32, leave out subsections (1) and (2) and insert—
“(1) For the purposes of this Part, a relevant public authority is—
(a) a police force maintained under section 2 of the Police Act 1996,
(b) the Metropolitan police force,
(c) the City of London police force,
(d) the Police Service of Scotland,
(e) the Police Service of Northern Ireland,
(f) the British Transport Police Force,
(g) the Ministry of Defence Police,
(h) the Royal Navy Police,
(i) the Royal Military Police,
(j) the Royal Air Force Police,
(k) the Security Service
(l) the Secret Intelligence Service,
(m) the GCHQ,
(n) the National Crime Agency and
(o) the Criminal Cases Review Commission.
(2) For the purposes of authorisations sought pursuant to section 53(7)(g) a relevant public authority also includes—
(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,
(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,
(c) the Northern Ireland Ambulance Service Health and Social Care trust,
(d) the Northern Ireland Fire and Rescue Service Board
(e) the Scottish Ambulance Service Board and
(f) the Welsh Ambulance Services National Health Service Trust.
(3) For the purposes of authorisations sought pursuant to Section 53(7)(h), a relevant public authority also includes—
(a) the Criminal Cases Review Commission and
(b) the Scottish Criminal Cases Review Commission”.
The Chair
With this it will be convenient to discuss amendment 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—
“(2) For the purposes of this Part, a relevant public authority is—
(a) a police force maintained under section 2 of the Police Act 1996,
(b) the Metropolitan Police Force,
(c) the City of London Police Force,
(d) the Police Service of Scotland,
(e) the Police Service of Northern Ireland,
(f) the British Transport Police Force,
(g) the Ministry of Defence Police,
(h) the Royal Navy Police,
(i) the Royal Military Police,
(j) the Royal Air Force Police,
(k) the Security Service,
(l) the Secret Intelligence Service,
(m) the GCHQ,
(n) the National Crime Agency,
(o) the Criminal Cases Review Commission, or
(p) the Scottish Criminal Cases Review Commission.
(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—
(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,
(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,
(c) the Northern Ireland Ambulance Service Health and Social Care trust,
(d) the Northern Ireland Fire and Rescue Service Board,
(e) the Scottish Ambulance Service Board, and
(f) the Welsh Ambulance Services National Health Service Trust.
(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—
(a) the Criminal Cases Review Commission and
(b) the Scottish Criminal Cases Review Commission.”
This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.
Keir Starmer
It is a pleasure to continue to serve under your chairmanship, Ms Dorries.
The clause sets out the relevant public authorities and designated senior officers for the purposes of part 3 of the Bill—in essence, those who may exercise the powers of obtaining communications data throughout this part. Last week, I drew attention to schedule 4 to the Bill and, in particular, to the large number of public authorities listed as “relevant”, including Food Standards Scotland, the Food Standards Agency, the Gambling Commission, the Office of Communications and the Northern Ireland Fire and Rescue Service Board. The list of relevant public authorities in schedule 4 is very long.
I also drew attention to the designated senior officers, who are authorised to obtain communications data. They are listed in the second column in schedule 4. To remind the Committee, if we take the Food Standards Agency, the designated senior officer is a grade 6 officer; if we take the Northern Ireland Fire and Rescue Service Board, the officer is the watch manager of control; and, to take one more example, for the Office of Communications, the officer is a senior associate. The point that I made last week was that, where there are wide powers of retention under the Bill, which we will come to later, the threshold for accessing the data is vital. The number of relevant public authorities is too wide and the level of the designated senior officers too low to provide a proper safeguard.
The amendment is intended to address that defect by setting out in the legislation a narrower set of relevant public authorities, listed in paragraphs (a) to (o) of proposed new subsection (1). It is a shorter and tighter list, but would none the less be a functional and effective one. Proposed new subsections (2) and (3) are an attempt to tie in other relevant public authorities to the particular power that would be appropriate for them to exercise. The relevant public authorities for the purposes of authorisation under clause 53(7)(g) are listed under proposed new subsection (2) and, similarly, those for clause 53(7)(h) are listed under proposed new subsection (3).
The amendment would tighten up the drafting of the Bill to limit the number of relevant public authorities and tie the lists more closely to the particular objectives set out in clause 53. Logically, therefore, it follows from the point that I was making last week and anticipates the one that I will make later this morning about the scope of the retention powers.
Joanna Cherry (Edinburgh South West) (SNP)
There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.
The Solicitor General (Robert Buckland)
It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.
It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.
I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.
The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.
Keir Starmer
I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.
The Solicitor General
I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.
I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.
With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.
To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.
To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.
Joanna Cherry
I note that the Solicitor General spoke of details of the “utility”, but the Digital Rights Ireland case sets out that states must limit the number of persons authorised to access and use this sort of data to what is “strictly necessary”. Does he agree that a long list of authorities, many of whose primary functions are wholly unrelated to law enforcement in the context of serious crime, is inconsistent with the requirement of strict necessity laid down in the Digital Rights case?
The Solicitor General
I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.
Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.
I remind the Committee that David Anderson QC concluded in his report:
“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”
The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as
“an important tool for law enforcement and other public bodies.”
For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I am grateful to the Solicitor General. There is obviously concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.
The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
According to the list I have, Ms Dorries, amendment 236 is also to be dealt with. As I explained, there are small differences between amendments 135 and 236.
Joanna Cherry
I realise that, but I have not been asked whether I want to put amendment 236 to a vote.
The Chair
Amendment 236 is not formally before the Committee. As I said in the opening notes at the beginning of the Committee, if you wanted to put it to a vote, you had to make me aware of that at the beginning.
Joanna Cherry
For the assistance of the Committee, I and Mr Starmer have spent a long time discussing who would lead on which clause, in order to speed matters up. I wish to put amendment 236 to a vote, although I did not speak to it. I would like that to be recorded in the minutes. If I am to be prevented from doing so, so be it.
The Chair
Although this is unusual, as we have not actually moved on we can vote on amendment 236 so that the matter is transparent, with the leave of the Committee.
The Chair
Ms Cherry, would you like to speak to your amendment before the Committee votes?
Joanna Cherry
I have nothing to add to what Mr Starmer said and the points that I made in my intervention.
Simon Hoare (North Dorset) (Con)
On a point of order, Ms Dorries. It may be that I am in error, and if I am I apologise and will take your chastisement. I thought I was correct in believing that when we are in a Public Bill Committee, it is as if we are having a debate on the Floor of the House and we are therefore referred to as the hon. Member or hon. Gentleman or whatever, rather than using Christian or first name and surname. Can you confirm that? I know some people get frightfully anxious about all the traditions of the House, but I just wanted to make sure that my understanding is correct.
The Chair
On that point, Ms Cherry and I had an informal discussion outside the Committee earlier this morning.
Amendment proposed: 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—
“(2) For the purposes of this Part, a relevant public authority is—
(a) a police force maintained under section 2 of the Police Act 1996,
(b) the Metropolitan Police Force,
(c) the City of London Police Force,
(d) the Police Service of Scotland,
(e) the Police Service of Northern Ireland,
(f) the British Transport Police Force,
(g) the Ministry of Defence Police,
(h) the Royal Navy Police,
(i) the Royal Military Police,
(j) the Royal Air Force Police,
(k) the Security Service,
(l) the Secret Intelligence Service,
(m) the GCHQ,
(n) the National Crime Agency,
(o) the Criminal Cases Review Commission, or
(p) the Scottish Criminal Cases Review Commission.
(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—
(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,
(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,
(c) the Northern Ireland Ambulance Service Health and Social Care trust,
(d) the Northern Ireland Fire and Rescue Service Board,
(e) the Scottish Ambulance Service Board, and
(f) the Welsh Ambulance Services National Health Service Trust.
(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—
(a) the Criminal Cases Review Commission and
(b) the Scottish Criminal Cases Review Commission.”—(Joanna Cherry.)
This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.
Question put, That the amendment be made.
Mr Hayes
I beg to move amendment 105, in schedule 4, page 206, line 40, at end insert—
“An ambulance trust in England | Duty Manager of Ambulance Trust Control Rooms | All | (g)” |
This amendment and amendments 106 and 108 replace the existing entry for ambulance trusts in England with a new entry containing a revised definition for such trusts and restricting the purposes for which data may be obtained.
Mr Hayes
Welcome to the Chair, Ms Dorries.
The amendments make minor changes to schedule 4. As has already been said, schedule 4 lists the public authorities that are able to acquire communications data, the types of communications that they are able to acquire and the statutory purposes for which they can do so. Amendment 105 adds a new entry for ambulance trusts in England, amendment 106 removes the existing entry and amendment 108 introduces the definition of an ambulance trust. The changes make the definition of ambulance trusts consistent with the definition in the Policing and Crime Bill.
The amendments also remove purpose (b) in clause 53(7) from the purposes for which ambulance trusts can acquire communications data, because ambulance trusts obviously do not need to acquire communications data for the purpose of the prevention or detection of crime. In the same vein, amendment 107 restricts the purposes that the Northern Ireland Fire and Rescue Service Board can use to acquire communications data, consistent with the purposes for English fire and rescue authorities. These are uncontentious amendments designed to make the Bill consistent and coherent.
Amendment 105 agreed to.
Amendments made: 106, in schedule 4, page 207, leave out lines 24 to 35.
See the explanatory statement for amendment 105.
Amendment 107, in schedule 4, page 207, line 39, leave out—
“Group Manager (Control) | All | (b) and (d)” |
This amendment prevents the Northern Ireland Fire and Rescue Service Board from obtaining data for the purpose of preventing or detecting crime or of preventing disorder, or in the interests of public safety.
Amendment 108, in schedule 4, page 208, line 10, after “Schedule” insert “—
“ambulance trust in England” means—
(a) an NHS trust all or most of whose hospitals, establishments and facilities are in England and which provides ambulance services, or
(b) an NHS foundation trust which provides such services,”.—(Mr Hayes.)
See the explanatory statement for amendment 105.
Question put, That the schedule, as amended, be the Fourth schedule to the Bill.
Keir Starmer
I rise to put on the record a concern about the clause and to remind the Committee that with the wide power of retention, the safeguards on access provisions are critical to the operation of the Bill as a whole. Broadly speaking, the safeguards are: who can authorise access, what the test is, the scope of the conduct authorised and such checks and limits as are otherwise put in the Bill. The clause covers who can authorise access, and my strong feeling is that that should be in the Bill rather than left to regulations, because it is a central safeguard. I will not vote against the clause, but I want to put on the record my view that a provision as important as who can access should be in the Bill and that amendments should be made to legislation rather than through regulation.
Mr Hayes
I know the hon. and learned Gentleman is probing. He is right that the clause sets out how the Secretary of State may, by regulation, add or remove public bodies listed in schedule 4 and make modifications accordingly, but it also sets out that the Secretary of State does so by means of regulations. He will have noted that in practice that means a statutory instrument, which is subject to the affirmative procedure, as is made clear in clause 63(3).
I understand the hon. and learned Gentleman’s point, which is reasonable, but there are limits on what the Secretary of State can do in the sense that the affirmative procedure must be followed, which will give an opportunity for further consideration. I am happy to confirm that the intention in the Bill and the spirit in which it was constructed are very much along the lines he described.
Joanna Cherry
I wish to oppose this clause.
Question put, That the clause stand part of the Bill.
Keir Starmer
I wish to raise two issues for the Committee’s consideration. The first is that the test in subsection (5) for a judicial authority is very weak. We are talking about restrictions on local authorities and we have moved from a test of reviewing the decision, found in other parts of the clause, to a test whether the judicial authority, in this case a justice of the peace, considers that
“there are reasonable grounds for considering requirements of this Part would be satisfied”.
The second is that the authority in this case is a JP. I accept that this a replication of another scheme in the same words, as the Solicitor General says. I will not oppose the clause, but in a Bill that is tightening safeguards, there is nothing to prevent that test being aligned with the other tests applied when judges, magistrates or other independent judicial figures oversee authorisations by bodies such as local authorities.
In fairness, I think these clauses were put in to tighten the controls on local authorities.
Keir Starmer
That is welcome and we support them for that reason. In tightening controls, there has been a failure, perhaps deliberate, not to align this with the test in other cases. The judicial authority would be able to say, “I would not in fact authorise, but there were reasonable grounds on which somebody else could have done so.” I am making a probing point; no amendment was tabled. I support the further protection in relation to local authorities. I just wondered whether there was a deliberate intention not to align this provision with the other safeguard provisions in the Bill.
Mr Hayes
There are two things to say. First, the measure replicates the current position under the Regulation of Investigatory Powers Act 2000, so it is established practice. Secondly, as the hon. and learned Gentleman conceded, it is an attempt to add an additional safeguard, for the reasons he gave. It seemed important that this was not used permissively. The only other thing I would add, given that he is probing, is that all of this would have to pass the tests of proportionality and necessity; that is a given. I am happy to look at whether we need to reinforce that, in the code or perhaps elsewhere, because proportionality and necessity underpin all of this; that is not specified in this part, but it is a prevailing and underpinning assumption about authorisation. I understand that he is probing and also appreciate that he understands what we are trying to do.
Keir Starmer
I am grateful to the Minister for the spirit in which he is approaching this issue. I accept that necessity and proportionality are the key tests for the application in the first place. The question for the magistrate is then whether there are reasonable grounds for considering it to be necessary and proportionate. That leaves room for the magistrate to say, “I personally do not think it is necessary and proportionate but I accept that somebody else might think there are reasonable grounds.” I do not want to take this too far because it is a relatively minor provision in the Bill and I accept that it is in the scheme of tightening the safeguards; however, I just wonder whether some thought can be given. When the other tests have been so carefully construed—and we will have further discussion on what those tests are—this is an outlier in the way that it is expressed. I accept that it reflects current practice, but I do not think that is necessarily a good reason for simply replicating that unless, on reflection, current practice is thought to be the right way forward from here.
Mr Hayes
I will test that. The hon. and learned Gentleman makes a reasonable point, so I will test our experience of current practice regarding this issue and I will also test and consider whether we need to provide further guidance. I would not want to go too far because, as he says, it is a minor matter, but he is right to say that it is important that it is consistent. I am more than happy to take a look at that, and on that basis I think we should move on.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—
“(a) is an officer appointed by the Investigatory Powers Commissioner;
(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—
(i) officers of the relevant public authorities about applying for authorisations; or
(ii) designated senior officers of public authorities about granting authorisations.”
The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.
The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.
The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.
It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?
In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.
The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.
The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.
The Solicitor General
I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:
“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”
Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:
“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”
I will finish the paragraph:
“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.
Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.
Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.
Suella Fernandes (Fareham) (Con)
I reiterate that this point was made very clearly by Michael Atkinson of the National Police Council’s Data Communications Group. He described the role of the SPOC as being “independent of the investigation” and subject to IOCCO inspections. They would also be regularly overseen, scrutinised and challenged on their work. So there is a very robust system of oversight and review, is there not?
The Solicitor General
My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.
Joanna Cherry
At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?
The Solicitor General
I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.
With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.
Joanna Cherry
On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?
The Solicitor General
In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.
Joanna Cherry
I am not prepared to withdraw the amendment.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 138, in clause 67, page 53, line 26, at end insert—
‘( ) the public interest in the protection of privacy and the integrity of personal data; and
( ) the public interest in the integrity of communications systems and computer networks.”
The Chair
With this it will be convenient to discuss amendment 140, in clause 67, page 53, line 38, at end insert—
‘( ) the public interest in the protection of privacy and the integrity of personal data; and
( ) the public interest in the integrity of communications systems and computer networks.”
Keir Starmer
The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on
“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”
Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.
Joanna Cherry
The amendments are jointly supported by Labour and the Scottish National party.
Throughout this part of the Bill, public authorities and other decision makers are placed under a duty to consider a range of factors connected to the decision to access retained communications data. Those factors include cost and other resource implications and
“any issues as to the lawfulness of the proposed authorisation.”
These amendments include a specific duty to consider the public interest and the protection of individual privacy—that is, the protection of the privacy of our constituents; and the security of communications systems and computer networks—that is, the security of our constituents’ private data. Both David Anderson, in his independent review, and the Intelligence and Security Committee, in its report on the draft Bill, emphasise the importance of privacy principles and the need to make clear the legality of the use of surveillance powers in this new legislation.
Although we are focusing on a specific amendment to increase safeguards for individual privacy and security of data, we are concerned that throughout the Bill there appear to be statutory duties on public agencies, officials and agents and on judicial commissioners, to consider factors relevant to national security and the prevention and detection of crime, and the effectiveness of powers and resources expended, but there is no specific treatment of privacy standards and the public interest.
While the clauses that these amendments are attached to refer to
“any issues as to the lawfulness”
of the powers, the vagueness of this instruction is, in my submission, very contradictory. Surely it must be the first consideration of any individual considering the exercise of powers under the Bill that they should be legal. Legality should be a first consideration; treating it as just one at the end of a list of other factors to be considered seems entirely inappropriate. In this regard, it would be of huge assistance if the Minister could give us a fuller explanation of why statutory duties in the Bill have been approached in this way, with legality as a final duty; of the objectives of including the factors as provided in the manner in which they are drafted; and of why the protection of privacy and the public interest in the integrity of communications systems and computer networks will not be mentioned unless this amendment is made.
Mr Hayes
The hon. and learned Member for Holborn and St Pancras is right about the purpose of the clause, and I understand the reason for the amendments. The single point of contact may advise the applicant and designated senior officer of the cost and resource implications for the public authority, and the communications service provider of any unintended consequences of the proposed authorisation and any issues surrounding the lawfulness of the proposed authorisation—one of the points that the hon. and learned Member for Edinburgh South West raised.
The points about cost and lawfulness that the hon. and learned Lady raised are certainly part of the advice that the applicant should receive, as well as the appropriate methods to obtain the data they are seeking, while the designated senior officer will be advised on the practicality of obtaining the data sought. Bear in mind that the single point of contact can already advise on the lawfulness of proposed authorisations. For authorisation to be lawful, it has to be both necessary for one of the statutory purposes in the Bill, and proportionate in all circumstances.
The point the hon. and learned Lady made about privacy is a reprise of the debate we had at the very beginning of our consideration, when I argued—I thought pretty convincingly, but clearly not—that privacy is woven through the Bill. For the sake of emphasis, I say again that the protection of privacy and personal data must be a key consideration in gauging proportionality.
Joanna Cherry
I hear what the Minister is saying. As I understand it, he is saying that the issues highlighted by the amendments will be taken into account, so why not say so? What is the detriment in saying so and making it crystal clear? This is for the comfort of the many constituents and members of the public who are concerned about the privacy and integrity of their data, so why not say so in the Bill? What possible detriment could there be in following that course of action?
Mr Hayes
Let me rehearse the argument that I used originally, because despite what I described as its persuasiveness, it clearly was not sufficiently well articulated to convert the hon. and learned Lady to the cause of virtue. Let me rearticulate it: if privacy is separated out in the way that some argue we should have done and might do now, and it is identified in the desiccated way that those people suggest, its significance is curiously—one might even go so far as to say paradoxically—weakened as a defining characteristic of the purposes of the legislation. However, it is worth emphasising the point I made a few moments ago about the need to tie personal interests and the protection of private data in to the test of proportionality in the draft codes of practice.
I draw attention to the codes of practice at paragraph 3.18—the heading is “Further guidance on necessity and proportionality”—which says:
“An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation.”
That could not be plainer in doing precisely what I have described, which is to look at the right to privacy—I do not like to use the word “right”; I prefer to use “entitlement”—the entitlement to privacy with the functioning nature of an investigation into the effectiveness of the process.
Joanna Cherry
As I understand it, the Minister is saying that privacy is so important and so woven into the Bill that to single it out would weaken its importance. Surely lawfulness is equally important and that has been singled out by the draftsmen in subsection (6)(d).
Mr Hayes
I have already argued that lawfulness is, again, an underpinning requirement in these terms. Just to be absolutely categorical, the designated senior officer is the one who makes the final assessment of necessity and proportionality, as required by the code of practice. They must have a working knowledge of legislation, specifically that which relates to necessity and proportionality and the entitlements of individuals in those terms.
I just think that the combination of the Bill and the codes of practice render the amendment unnecessary. I emphasised previously that the codes of practice are drafts and the final code of practice will reflect some of this Committee’s considerations. If I may turn my attention momentarily from the hon. and learned Lady, if the hon. and learned Member for Holborn and St Pancras feels that the code should be strengthened in that regard—I re-emphasise that I think they are pretty clear—I would of course be prepared to hear his argument. [Interruption.] Before I move on to the amendment about system integrity, I can see that he is champing at the bit, or maybe I am misinterpreting him.
Keir Starmer
I was going to cover this in my reply, but the argument the Minister is now putting is unpersuasive, and I am afraid I found it unpersuasive a week ago. In practical reality, when a senior designated officer gets to lawfulness, they will be thinking necessity and proportionality, and they are likely to be advised about that. That is the test for restricting privacy. What we do not see is the statement of privacy, either in this subsection or an overarching clause—I have been trying to articulate what is nagging away as to why the overarching clause is needed. In the end, real people, in real time, will find that lawfulness will mean going back to check necessity and proportionality. That is welcome and right, but they are not the definition of privacy; they are the permitted restrictions of it.
Mr Hayes
That is a fair argument and that is why it is necessary to supplement what the hon. and learned Gentleman describes with the code of practice in the way that I have described. My invitation to him was that if he accepts that, he might want to focus attention on the code of practice to see whether it is as good as it might be. I drew attention to the provision on the necessity and proportionality. It might be that the draft could be further improved. After all, nothing, at least on earth, is perfect, and certainly no Government would want to claim perfection—
Suella Fernandes
Is it not impossible that privacy will not be considered as part of any application? Proportionality runs through the authorisation regime, and if a single point of contact has to apply a proportionality test, by definition and necessity, he will incorporate a wide-ranging consideration of the impact on privacy.
Mr Hayes
Yes, I agree. That is an elegant re-articulation of the point that I was imperfectly making about the intrinsic relationship between a consideration of personal interest and the test of proportionality. For the exercise of the power to be proportionate, it must take proper account of the balance that I described between personal interest and investigative effectiveness.
Keir Starmer
This is a relatively minor point, but it goes to the wider question of the overarching clause.
Keir Starmer
We have to look at this issue practically, through the eyes of the people who will operate such authorisations. I know how it will work: they will be directed to look at the necessity against clause 53(7) and they will go through a list. They will then be asked to look at the proportionality against the matters set out in clause 53. That does not point them to privacy. In the vast majority of cases—in good faith, I am sure—they will go through that clause, rather like a checklist. I do not mean to demean or undermine the exercise that they will go through, but I have seen the operation of such tests many times. Those people will ask themselves, “Is it in the interests of X, Y and Z? Is it proportionate to that?” I accept the point about the code of practice, but they will not necessarily ask themselves about privacy. That point is probably more about the overarching clause than about the specific amendment, but that is our nagging concern. One has to see this issue through the eyes of how in practice the process will work on the ground in real time.
Mr Hayes
The hon. and learned Gentleman describes the concerns and says that he knows them. Of course, he will also know that it is part of the requirements that those people undertake the right training and that they are expected to have competence, in particular an understanding of all the necessary legislation, including rights legislation. It is important to understand that those people will be making an assessment based on both evidence and comprehension. I re-emphasise that the code of practice is vital. I am trying to tip him off—perhaps I am being too subtle—that he may want to press me further on those very matters in terms of the draft code of practice, which is pretty good, but such drafts can always be improved.
Let me be even more generous. I am an Hegelian, as the hon. and learned Gentleman knows, and I believe that the truth lies in the whole, as Hegel said. The emphasis on privacy that underpins the whole Bill is fundamentally important, but in this regard I take his point that those missioned to do this job need to be very clear about that balance. To be still more generous, he is right in his strong implication that the training and guidance that those people receive about the interpretation of proportionality in this regard is important. That is the purpose of the code of practice, but we might want to go still further and I am happy to be tested further on that during the course of our consideration. I want to move on to the next group of amendments, because otherwise we will do this to death, but have I signalled clearly my direction of travel?
Keir Starmer
I am grateful to the Minister. I raised this issue of how we go through this exercise with the codes of practice, to which we cannot table amendments, a week ago today. I take his comments as an invitation to draft or suggest tightening amendments—not necessarily in Committee, but outside it—where we think they are appropriate. I take it that those will be taken into consideration in any possible re-drafting of the code. I am grateful for that and we will engage with that exercise.
Mr Hayes
I would like to think I was a young blood with an old head. That is how I would see it; let us leave it there and move on.
Let me turn to systems integrity. It is important to set out the process for obtaining communications data. A public authority must require a communications provider to disclose communication data or it may engage in activity to acquire the data directly from a telecommunications system. Where data are sought from a provider, they will mostly be data that the provider has for business purposes or data retained under a retention notice. To the extent that a provider has put in place any dedicated system to provide for the acquisition of communications data, that capability and the necessary security assurances will be provided for under a data retention notice or technical capability notice.
In relation to obtaining data directly from a telecommunications system, the communications data code of practice makes it clear that communications data authorisation cannot permit the undertaking of any technique that involves interference with those systems themselves. That is quite important because, as various Committee members will know, that is an important assurance for providers. Such techniques could be authorised only under an equipment interference warrant. We will discuss those matters in the next part of the Bill.
The processes of requiring a provider to disclose data or the obtaining of data directly from a network will not have any impact on the integrity of telecommunications systems or the computer networks concerned. Accordingly, this is not an area on which the applicant or designated person will require advice. In essence, with that absolute firm assurance, the amendment is unnecessary and I invite the hon. and learned Member for Holborn and St Pancras to withdraw it.
Keir Starmer
The more I have listened to the debate on the amendment, the more convinced I have become that there is a need for an overarching privacy clause, to which I will turn our attention at a later stage. It follows from that that I will focus my energies elsewhere, and therefore I beg to ask leave to withdraw the amendment.
Joanna Cherry
I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.
Question put, That the amendment be made:—
Keir Starmer
I beg to move amendment 141, in clause 68, page 54, leave out lines 3 to 13 and insert—
“( ) An application for an order shall be made on notice to the journalist or journalists affected unless the Judicial Commissioner determines that an application without such notice is required in order to avoid prejudice to the investigation.
( ) Paragraphs 7 – 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 Police and Criminal Evidence Act 1984.
( ) Criminal Procedure Rules may make provision about proceedings under this section where the Judicial Commissioner determines that an application without such notice is required.
( ) A Judicial Commissioner may only make an order if the person making the application has convincingly established that—
(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention, and
(b) there is an overriding public interest necessitating the order, and
(c) reasonable alternative measures to the order do not exist or have been exhausted, and
(d) the order is proportionate to the legitimate aim or aims being pursued.
( ) The costs of any application and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the Judicial Commissioner”.
How journalistic material and in particular journalists’ sources are to be protected under part 3 of the Bill is a substantive issue of real importance in a modern democracy.
“Issues surrounding the infringement of the right to freedom of expression may arise where an application is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”
Those strong statements of principle that underpin our democracy are agreed across this House. I say that with confidence not only because of the strong public interest, but because they are written into the code of practice at paragraph 6.5. That suggests they are shared and important democratic principles. I argue that that expression of principle is not translated into reality in the provisions of the clause or through the Bill, and the clause is of considerable concern.
Let me give the background, as there is a chequered history. It is now clear that, in the case of Tom Newton Dunn, the police used the Regulation of Investigatory Powers Act 2000 to access his phone records in secret in 2014. They did not notify him that they had accessed his material or sources; the Metropolitan police obtained the phone records without notification or consent. In other RIPA cases, no journalists were informed in advance. The Interception of Communications Commissioner highlighted in a report in February 2015 that 19 police forces had accessed the communications data of 82 journalists using RIPA in that way. The point of real importance is that there is no fundamental difference between the authorities asking for a journalist’s physical contact book and footage or for their telephone and communications records; the effect on journalists and sources is exactly the same and the same legal safeguards must apply to both.
The safeguards in the Police and Criminal Evidence Act 1984 set a higher standard than those in the Bill as it stands. Under PACE, journalists are notified when the authorities want to access their material and sources, and they have the ability to defend their sources. Neither RIPA nor the Bill apply the same protections and safeguards. The RIPA interim codes of practice, published in March 2015, stated that the authorities must use the PACE procedures to apply to the court for a production order to obtain data. The Bill fails to meet that test.
Lucy Frazer (South East Cambridgeshire) (Con)
I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.
Keir Starmer
I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.
The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.
Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.
The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.
The Solicitor General
I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.
I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.
Keir Starmer
The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.
The Solicitor General
I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.
The Solicitor General
I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.
The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.
Keir Starmer
I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.
The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.
The Solicitor General
Yes, but with respect, the hon. and learned Gentleman is ignoring the function of this clause, which is that where you do have that list, we have a special procedure. The problem with that argument is that there is a sensitive issue here. Where someone—whether they are a journalist or not—is the subject of a legitimate investigation, that could undermine such an investigation. Getting the balance right is therefore very important—[Interruption.] I want to finish this point. That is why, both in the Bill and this clause, special procedures apply where the sort of mischief about a source being compromised is indeed a live issue.
Keir Starmer
In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary
“in order to avoid prejudice to the investigation.”
He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.
The Solicitor General
I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.
May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.
On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.
I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.
Keir Starmer
I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.
The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.
Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.
In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 142, in clause 68, page 54, line 5, leave out from “data” to “and” on line 7 and insert “further to this Part”.
The Chair
With this it will be convenient to discuss the following:
Amendment 143, in clause 68, page 54, line 18, leave out “considers” and insert “determines”.
Amendment 144, in clause 68, page 54, line 19, leave out subsections (5) (a) and (b) and insert—
‘( ) that the conduct permitted by the authorisation is necessary for one or more of the purposes in section 53(7); and
( ) that the conduct permitted by the authorisation is proportionate to what is sought to be achieved by that conduct.”
Amendment 145, in clause 68, page 54, line 29, leave out subsection (7) and insert—
‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.
( ) A “Deputy Judicial Commissioner” must be—
(a) in relation to England and Wales, a justice of the peace,
(b) in relation to Scotland, a sheriff, and
(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.
( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—
(a) insofar as the communication consists of matters subject to legal privilege; or
(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.
( ) For the purposes of subsection (1), legal privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) In connection with the giving of legal advice or
(ii) In connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.
( ) An application which contains a statement that the purpose of a warrant is to access communications data in connection with communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.
( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—
(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;
(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made; and
(c) that the data concerned is likely to be relevant evidence;
(d) other proportionate methods of obtaining the data have been tried without success or were not tried because they were bound to fail;
(e) it is in the public interest that the authorisation is granted, having regard to—
(i) the benefit likely to accrue to the investigation and prosecution if the data is accessed,
(ii) the importance of the prosecution and
(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege,
( ) A code of practice issued under Schedule 6 must contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);
(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.
( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.
( ) Special procedure material subject to subsection (1) will include—
(a) journalistic material other than material which a person holds in confidence and
(b) communications sent by, or intended for, a member of the relevant legislature.
( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.
( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—
(a) a criminal offence has been committed,
(b) the material is likely to be of substantial value to the investigation of that offence,
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail and
(d) it is in the public interest that the warrant is granted, having regard to—
(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed,
(ii) the importance of the prosecution,
(iii) the importance of maintaining public confidence in the integrity of journalists’ work product, and/or communications with members of relevant legislatures and
(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.
( ) Where data could reasonably be obtained by means of a search and seizure order pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part will not be in the public interest.
( ) An application for an authorisation concerning journalistic material held in confidence or information for the purpose of identifying or confirming a source of journalistic information, may only be considered by the Investigatory Powers Commissioner, who must be satisfied that there are reasonable grounds to believe—
(a) a criminal offence has been committed,
(b) the communications data is likely to be of substantial value to the investigation of that offence,
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail and
(d) it is in the public interest that the authorisation is granted, having regard to—
(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed;
(ii) the importance of the prosecution;
(iii) the importance of maintaining public confidence in the integrity of journalists’ work product and
(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.
( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.
( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.
( ) Journalistic material is held in confidence for the purposes of this section if—
(a) it is held subject to such an undertaking, restriction or obligation and
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”
Amendment 242, in clause 68, page 54, line 29, leave out subsection (7) and insert—
‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.
( ) A “Deputy Judicial Commissioner” must be—
(a) in relation to England and Wales, a justice of the peace,
(b) in relation to Scotland, a sheriff, and
(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.
( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—
(a) insofar as the communication consists of matters subject to legal privilege; or
(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.
( ) For the purposes of subsection (1), legal privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice, or
(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.
( ) An application which contains a statement that the purpose of a warrant is to access communications data in connection with communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.
( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—
(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;
(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made;
(c) that the data concerned is likely to be relevant evidence;
(d) other proportionate methods of obtaining the data have been tried without success or were not tried because they were bound to fail;
(e) it is in the public interest that the authorisation is granted, having regard to the—
(i) benefit likely to accrue to the investigation and prosecution if the data is accessed;
(ii) importance of the prosecution; and
(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.
( ) A code of practice issued under Schedule 6 must contain provision about—
(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);
(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.
( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.
( ) Special procedure material subject to subsection (1) will include—
(a) journalistic material other than material which a person holds in confidence;
(b) communications sent by, or intended for, a member of the relevant legislature.
( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.
( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—
(a) a criminal offence has been committed;
(b) the material is likely to be of substantial value to the investigation of that offence;
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;
(d) it is in the public interest that the warrant is granted, having regard to the—
(i) benefit likely to accrue to the investigation and prosecution if the information is accessed;
(ii) importance of the prosecution;
(iii) importance of maintaining public confidence in the integrity of journalists’ work product; and
(iv) public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.
( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.
( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.
( ) Journalistic material is held in confidence for the purposes of this section if—
(a) it is held subject to such an undertaking, restriction or obligation;
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”
This amendment proposes special procedures for communications data, subject to legal professional privilege, and for the protection of journalistic material and the communications data of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy Judicial Commissioners to consider applications for the authorisation of access to Communications Data.
New clause 14—Authorisations in relation to items subject to legal privilege—
‘(1) Subsections (2) and (3) apply if—
(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and
(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.
(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.
(3) The person to whom the application is made may grant the authorisation only if the person considers—
(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the acquisition of the communications data in question, and
(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.
(4) Subsections (5) and (6) apply if—
(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,
(b) the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and
(c) subsections (2) and (3) do not apply.
(5) The application must contain—
(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and
(b) an assessment of how likely it is that the relevant communications data will include communications data which contains, or might tend to reveal the content of, such items.
(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of material), including specific arrangements for the handling, retention, use and destruction of any communications data which contains, or might tend to reveal the content of, items subject to legal privilege.
(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.
(8) In this section “relevant communications data” means any communications data the obtaining of which is authorised by the authorisation.”
Keir Starmer
Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist’s material and the protection of journalist’s sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.
I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.
Joanna Cherry
I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.
Keir Starmer
I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry to pause on this, Ms Dorries.
Joanna Cherry
Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.
Keir Starmer
I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.
The Solicitor General
I will not revisit the arguments except to say that there are important differences between the regime for communications data and that which is contained within clause 94, for example, which deals with equipment interference. We will come on to that in due course. I remind the hon. and learned Gentleman that paragraph 6.4 of the code of practice contains specific reference to a number of sensitive occupations, including,
“medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion”.
If there is any lack of clarity in the code as to whether this includes Members of the Scottish Parliament or indeed of other devolved institutions, I am sure that that could be cleared up, and it should be.
Joanna Cherry
My point is not about the definition of parliamentarians but on the question of legal professional privilege. I think I am right in saying that the Government do not currently recognise that comms data come within the definition of legally privileged material. Does he not agree with me that a phone call from or to a lawyer could, for example, identify a potential witness in a case, and therefore comms data should come within the definition of legal professional privilege?
The Solicitor General
I do not want to go back to arguments that we have already had on this or to anticipate any future arguments. With regards to legal professional privilege, sometimes it might be difficult to establish precisely what comes within and without that category. However, we are talking not about the content of what has been said or done but about the fact of a communication having been made, so communications data will rarely, if ever, attract legal professional privilege; it is difficult to think of an example when it would.
Keir Starmer
I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.
The Solicitor General
While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.
The Solicitor General
May I just deal with this matter? As I said, I am having difficulty identifying a circumstance in which communications data—material without context or wider information—would attract that protection. In what we call the David Davis and Tom Watson case, which has been referred by the Court of Appeal to the Court of Justice of the European Union, in its judgment the court of first instance, the divisional court, said:
“No doubt such an example of privilege would rarely arise.”
I think it is important to note that, while I am not saying that it would never arise, I am having difficulty in imagining that the material itself would breach the dam, if you like, of the important safeguard of legal professional privilege.
Lucy Frazer
Just in response to the hon. and learned Gentleman’s point about the identity of the person being subject to legal professional privilege: in litigation it is always known, because the solicitor is on the record as to who he acts for, and at a case management conference the barristers who are taking the matter forward will be identified.
The Solicitor General
I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.
Keir Starmer
I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.
The Solicitor General
I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.
Joanna Cherry
The Solicitor General is very generous in taking interventions. We currently have four silks arguing about whether LPP can apply to comms data. Too many lawyers spoil the broth perhaps, but is that not an indication that a code of practice is not going to be enough to resolve this issue? It should go before a judicial commissioner, as proposed by the amendment.
The Solicitor General
The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.
I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.
If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.
Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.
Keir Starmer
I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 68 ordered to stand part of the Bill.
Clause 69
Collaboration agreements
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Eighth sitting)
Tuesday 19th April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 8 - Question accordingly negatived.
The Chair
This will be a long session: five hours. If anyone is worried about comfort breaks, I do not have the constitution of Mr Speaker, so I will call one at around 4 o’clock or 4.15 pm. We are then expecting a vote on a programme motion at around 6 o’clock. That will, I hope, break it up nicely.
The Minister for Security (Mr John Hayes)
On a point of order, Madam Chairman. I mentioned at the outset this morning that I had written to you and intended to make copies of that correspondence available to Committee members. In the course of the proceedings, I heard the Solicitor General report that I had also written to journalists. Hard copies of all that correspondence are available at the front of the room for collection by members, and I understand that it has also been sent to members by email.
The Chair
Thank you very much.
Clauses 70 and 71 ordered to stand part of the Bill.
Clause 72
Lawfulness of conduct authorised by this Part
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 246, in clause 72, page 57, line 35, leave out from “subsection (1)” to end of line 40.
This amendment ensures that if conduct cannot be justified it must remain unlawful.
The Chair
With this it will be convenient to discuss amendment 148, in clause 72, page 57, line 36, leave out paragraph (b).
Joanna Cherry
I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.
The Solicitor General (Robert Buckland)
May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.
I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 72 ordered to stand part of the Bill.
Clause 73 ordered to stand part of the Bill.
Clause 74
Certain transfer and agency arrangements with public authorities
Question proposed, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
There are matters relating to this clause on which I would like to press the Minister. This is the clause that provides for what is effectively the transfer of certain functions between the Secretary of State and other public authorities. The functions to be transferred are the functions in clauses 58 to 60, at which we looked in some detail last week: the filtering arrangements for obtaining data. As set out in clause 58, it is for the Secretary of State to maintain and operate arrangements. It is then for the relevant public authority, acting through a designated senior officer, to effectively carry out the exercise, using authorisations as and where necessary and appropriate. We discussed that arrangement.
Clause 74 provides for a transfer of functions of the Secretary of State—which I take to include establishing, maintaining and operating arrangements—from the Secretary of State to another public authority. That seems to me to cut through the thrust and the purpose of clause 58, which has a clear hierarchy to it: the Secretary of State, then the designated senior officer. Subsection (1)(b) is freestanding and transfers any function exercisable by a public authority back the other way to the Secretary of State, so there is a complete provision for a swap of roles. Subsection (3) indicates that:
“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.
Then schedule 5, in the back of the Bill, is referred to, but that does not add a great deal.
The question for the Minister is: how is it anticipated that these powers are to be exercised? On the face of it, this is an odd structure for a Bill to set out. This structure goes from the Secretary of State down to the relevant public authority, with the Secretary of State having a much wider role of setting up the arrangements, only for us to find, several clauses later, that it is possible to flip the functions and have the public authority making the arrangements. That seems to remove some of the formality and the safeguards intended by clause 58.
Mr Hayes
The hon. and learned Gentleman, with his typical diligence—which is at least matched, by the way, by those on the Treasury Bench—has identified, quite properly, both the reasons for this clause and the character of the transfer of arrangements that it details. He accurately identified subsection (3), which emphasises that:
“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.
The transfer of arrangements will change neither the Secretary of State’s responsibility nor the process for authorising requests for data. It is about the technical running of the filtering capability. It is there to require flexibility; it might be appropriate at some future point for another authority to exercise the filtering function, but without responsibility moving from the Secretary of State. The Secretary of State will retain responsibility, but the operational running of the filter might change over time. This is essentially about future proofing.
Keir Starmer
I am grateful to the Minister. I am not being pernickety; I just want to be clear. Subsection (3) appears to apply only to regulations under subsection (2), which I think is about changing the powers of public authorities lest they should not have the power to carry out functions on behalf of the Secretary of State. In other words, when the Secretary of State is modifying the powers available to a public authority, that comes within subsection (3). On reflection, I wonder whether sub-clause 3 should say “regulations under subsections (1) and (2) do not affect the Secretary of State’s responsibility”, because I think that is the thrust of what the Minister said.
Mr Hayes
That is not an unreasonable point, actually. Someone who read the Bill could certainly come to the same conclusion as the hon. and learned Gentleman. I will look at that from a drafting perspective, because it is important that we are clear. First, in all these matters, filtering arrangements take effect only as the result of a lawful process; the process for permission will not change. Secondly, that permission rests with the Secretary of State; I do not want there to be any ambiguity—as the hon. and learned Gentleman suggests there might be—about which parts of this clause that affects. On re-reading the clause, I can see what he means, so I am happy to take it away and check whether the drafting needs to be amended in the way that he describes. In that spirit, and with that immensely generous offer, I hope we can move on.
Keir Starmer
I am grateful.
Question put and agreed to.
Clause 74 accordingly ordered to stand part of the Bill.
Schedule 5 agreed to.
Clause 75 ordered to stand part of the Bill.
Clause 76
Extra-territorial application of Part 3
Keir Starmer
I beg to move amendment 150, in clause 76, page 59, line 26, after “Kingdom”, insert
“the notice shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”.
The Chair
With this it will be convenient to discuss amendment 151, in clause 76, page 59, line 39, leave out subsection (4) and insert—
“(4) Subsections (1) or (2) of section 57 shall not be applicable where the taking of any steps by a relevant operator outside the United Kingdom—
(a) would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or
(b) could be achieved via a notice served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”.
Keir Starmer
We return to familiar territory here, in relation to the extraterritorial application of authorisations under part 3. When I made my observations last week, I outlined the concerns that a number of service providers and tech companies have; I do not intend to repeat them.
Amendment 150 would tighten the service provisions in relation to the extraterritorial application of part 3. Amendment 151 would introduce a restriction that had the effect of not requiring a relevant operator outside the UK
“to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services,”
or to take steps that
“could be achieved via a notice served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”
We reached this point last week in relation to provisions that were not dissimilar. The Minister made various points, both about service and about other provisions—particularly those relating to the way international mutual assistance agreements currently work. I will not press these amendments to a vote, for the same reasons as last week, but would indicate that the thrust and purpose of the amendments was to anticipate the agreements on extraterritorial application that it is hoped will be reached—particularly with the US—and that are being negotiated at the moment.
Victoria Atkins (Louth and Horncastle) (Con)
The hon. and learned Gentleman will appreciate I was not chairing the Committee, so this is very much my own impression of what went on. Lord Murphy was, as one would expect, very keen to accommodate the service providers and the Committee Clerks proposed several dates. We were grateful for the written evidence and formed the view we did, but it would have been nice if they could have fitted us into their busy schedules.
Keir Starmer
We probably will not gain much by arguing the detail, particularly as I was not there. The point that the service providers wanted to get across was that in principle they did want to give evidence. They gave written evidence. It was simply that the dates would not work for them as a group, rather than any unwillingness to share their concerns.
The Minister for Security raised a point about the Sheinwald arrangements and the progress being made. As I said a moment ago, these amendments are intended to foreshadow the—I hope—new world of working arrangements, which will cover not only evidence for use in prosecutions but the facilitation of the exercise of powers of this Bill in much faster time than some of the current mutual assistance agreements. The Minister made a further point about the differing views of the companies concerned. There are different views about some aspects of the Bill, but on the issues of extraterritorial application they speak with one voice.
There is an important broader issue to put on the table. As we move forward to international agreements, particularly with the US, it is very important that not only our Government but the US Government are comfortable with the arrangements, because whatever arrangements are put in place will be reciprocal.
Finally, may I hand a schedule to you, Ms Dorries, to the Minister and his team and to the hon. and learned Member for Edinburgh South West? I do not intend to speak at great length to this document, which was prepared for me. What it points out is the inconsistency in approach on extraterritorial jurisdiction. It is quite telling in a number of respects. It tracks whether there is extraterritorial jurisdiction, which clauses give rise to it, whether there is a reasonableness test or a reference to conflict of laws built in, whether it is enforced by overseas service providers, whether there is an international mutual assistance framework and whether there is an obligation on the Secretary of State to consult. What struck me when I went through the document was the inconsistencies. If they are intentional inconsistencies that can be defended, all well and good. I am simply bringing it to the Minister’s attention that we have found these apparent inconsistencies. If they are not intentional, it might be a good idea if somebody looked at them to tidy up the provisions and ensure that where they should be consistent, they are.
Lucy Frazer (South East Cambridgeshire) (Con)
I am looking at the hon. and learned Gentleman’s amendment 150, and of course it is necessary to serve someone so that they get notice. The provisions of service are always about the substance of whether the person gets the notice. It is clear to me from the current drafting that if there were service in accordance with any of clause 76(3), the company would get notice. I have a few concerns about the amendment. I am very wary, because people often take points of service to disrupt a substantive issue. It would be unfortunate if people could take the point that they were not properly served and therefore not comply. Does “principal office” have a meaning in other jurisdictions? If there are different services, will “provision of services” cause confusion? What is the meaning of “unfeasible or inappropriate” and how will it be applied? I believe that the clause will maintain what is desired, which is that it will come to the company’s attention, so I am slightly concerned about the amendment.
Keir Starmer
I am grateful to the hon. and learned Lady for her intervention. I am not pressing amendments 150 and 151. They have been put forward to draw attention to concerns. The hon. and learned Lady made submissions last week about service in relation to civil proceedings under the White Book, which I noted and could see the sense of. I do not want to push amendment 150 and accept that “unfeasible” and “inappropriate” may not be the best way to articulate the point.
What underlies both amendments is a genuine concern on the part of those who, when the Bill receives Royal Assent, will be called on to assist in relation to warrants and who want clarity on how the procedure is to operate, what they are to do and what the safeguards are, in particular when they find themselves, as we mentioned last week, required under penalty of criminal proceedings in this country to do something that constitutes an offence in the country in which they are operating. That is a very real concern for them.
Mr Hayes
I shall deal as pithily as is possible with the points the hon. and learned Gentleman made. The first was his helpful contribution in the form of this schematic, to which I will not respond now. He would not expect me to as I have only just seen it. It might form part of my next letter to the Committee to explain why in different parts of the Bill these matters are handled in different ways. In doing so, I will implicitly consider his point about whether that is healthy eclecticism or unhappy inconsistency.
Secondly, it is important to point out that clause 76 essentially maintains provisions on extraterritoriality as they are now, replicating the arrangements under RIPA, clarified by the Data Retention and Investigatory Powers Act 2014. The hon. and learned Gentleman is right, but there is nothing new here.
Thirdly, there is a need to retain flexibility about where the notices are served. I take the hon. and learned Gentleman’s point that companies may take a view on these things, and sometimes those might be overlapping or conflicting views about different aspects of the Bill, but in those terms it is important to maintain a degree of flexibility about the communications data notice and where it can be delivered.
Fourthly, on the hon. and learned Gentleman’s point about coming more speedily to an agreement that is more satisfactory than either current arrangements or those that might be delivered through a mutual legal assistance treaty, I can offer the Committee the assurance, as I have previously, that that work is under way. We are hopeful—indeed, confident—that we can achieve the sort of outcome that he has described. He referred, as I did, to the comments of David Anderson, which were critical of the mutual legal assistance treaty process on the grounds that it is slow. It is not always the best way of achieving the objective set out in the Bill, because it is not designed for that purpose but an entirely different one.
Finally, I would say that this is really important. Although the hon. and learned Gentleman is right that this is a particular part of a particular part of the Bill and so could be overlooked, it is important to understand that, in terms of the objectives we seek to achieve—that is, those of us who want the Bill to work well, which I think applies to the whole Committee—these powers are significant. Much of what happens is now happening overseas and much of the process by which we deal with overseas organisations is vital to the work of our security services and others. Dealing with extraterritorial matters is significant, but not straightforward. It is dynamic, for the reasons that we have both offered to the Committee. In that respect, I believe we have got the Bill about where it wants to be. I do not say that these things will not evolve over time, but for the purposes we have set out, the clause works.
As with all these things, I start from the perspective of wanting to be both convivial and conciliatory; both helpful and positive. I never ignore arguments put in these Committees or on the Floor of the House, as people know who know how I operate. The House has an important function in making government as good as it can be, and that is partly about the interaction and tension between Government and Opposition. Of course I am always prepared to listen, but I think we have got this right. With the appropriate humility, I suggest that we move on.
Keir Starmer
I indicated would not press the amendments at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I oppose the clause. I hear what the Minister has to say, but I am not reassured by the Government’s approach. Harking back to something I said last week, I do not think that the Government have got the balance right, because in seeking to gather to themselves an extraterritorial application through United Kingdom law, there are hidden dangers.
If international companies are required to arbitrate between conflicting legal systems, it is leaving the protection of human rights to the good will and judgment of those companies. Companies such as the ones the hon. and learned Member for Holborn and St Pancras mentioned have already expressed concerns to David Anderson, for his report “A Question of Trust”, that
“unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”
In my view, the most appropriate way forward is to pursue the route, which I am pleased the Minister has assured us that the Government are well down, of mutual legal assistance agreements with other states. If we do not pursue that route in the way that both David Anderson and Sir Nigel Sheinwald recommended with appropriate alacrity, and instead rely simply on clauses such as this one, which are spread throughout the Bill, we will create real difficulty for corporate entities. We will also create difficulties for the international enforcement of human rights, which I consider a bit more important than difficulties for corporate entities, although we should not set the latter to one side, because they are significant. For that reason, notwithstanding the Minister’s assurances, the SNP opposes clause stand part.
Mr Hayes
I will not make a case again for the clause, but I shall say this, in the spirit of helpfulness and kindness. It is really important that the Committee sends out a combined message to overseas communications service providers—on which the obligations will have an important effect because their commercial endeavours have a significant relationship with the powers we are trying to cement in the Bill—so that they have a very clear impression that we as a Committee of this Parliament are clear that we expect them to do their bit to do what is right. We should not, out of a sense of good will, allow ourselves to be misled and encouraged not to have high expectations or make serious demands of those organisations.
I simply say to the hon. and learned Lady that clause 76 is about giving a clear signal, as does clause 57, with which it should be read in tandem, that telecommunications operators should comply with the notice given, whether or not they are in this country. I accept that that is difficult and challenging—I made that point at the outset—but my goodness, it is vital that we take these steps. I know that she is open-minded and a woman of great good will, but we should not allow that to dilute in any way that common message to those big companies. I do not want those companies to get away with anything that that should not get away with.
Joanna Cherry
I am not so much concerned about the message we send out to the companies; I am more concerned about the message we send out internationally and potentially to authoritarian regimes. The difficulty is that if the British Government demand from these companies unqualified co-operation with British laws, that might encourage authoritarian Governments to do likewise. We clearly would not want that, so we need to be very careful about the messages we send out and think carefully about their full implications. That is why such matters should be approached by way of mutual legal agreement internationally, rather than the unilateral imposition of one Parliament’s will outwith the area where its sovereignty operates.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 164, in clause 78, page 61, line 5, leave out subsection (1) and insert—
“(1) A Judicial Commissioner may issue a data retention warrant under this Part to authorise the retention of relevant communications data if the Judicial Commissioner considers that the authorisation is necessary and proportionate for one or more of the following purposes—
(a) in the interests of national security, or
(b) for the purpose of preventing or detecting serious crime, or
(c) for the purpose of preventing death or serious injury.”
The Chair
With this it will be convenient to discuss the following:
Amendment 165, in clause 78, page 61, line 10, leave out “A retention notice may” and insert “A data retention warrant must”.
Amendment 154, in clause 78, page 61, line 19, leave out “notice” and insert “warrant”.
Amendment 155, in clause 78, page 61, line 30, leave out “retention notice” and insert “retention warrant”.
Amendment 235, in clause 78, page 61, line 30, leave out second “notice” and insert “warrant”.
Amendment 156, in clause 78, page 61, line 32, leave out “notice” and insert “warrant”.
Amendment 157, in clause 78, page 61, line 33, leave out “notice” and insert “warrant”.
Amendment 158, in clause 78, page 61, line 34, leave out “notice” and insert “warrant”.
Amendment 159, in clause 78, page 61, line 36, leave out “notice” and insert “warrant”.
Amendment 160, in clause 78, page 61, line 37, leave out “notice” and insert “warrant”.
Amendment 161, in clause 78, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 162, in clause 78, page 61, line 41, leave out “notice” and insert “warrant”.
Amendment 166, in clause 79, page 62, line 26, leave out “notice” and insert “warrant”.
Amendment 220, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 168, in clause 79, page 62, line 28, leave out “notice” and insert “warrant”.
Amendment 169, in clause 79, page 62, line 30, leave out “notice” and insert “warrant”.
Amendment 170, in clause 79, page 62, line 31, leave out “notice” and insert “warrant”.
Amendment 171, in clause 79, page 62, line 32, leave out “notice” and insert “warrant”.
Amendment 172, in clause 79, page 62, line 33, leave out “notice” and insert “warrant”.
Amendment 173, in clause 79, page 62, line 35, leave out “notice” and insert “warrant”.
Amendment 174, in clause 79, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 176, in clause 80, page 62, line 38, leave out “notice” and insert “warrant”.
Amendment 198, in clause 80, page 62, line 40, leave out “back to the Secretary of State” and insert “to the Investigatory Powers Commissioner for review”.
Amendment 335, in clause 80, page 62, line 40, leave out “notice” and insert “warrant”.
Amendment 177, in clause 80, page 62, line 41, leave out “notice” and insert “warrant”.
Amendment 178, in clause 80, page 62, line 42, leave out “notice” and insert “warrant”.
Amendment 180, in clause 80, page 63, line 5, leave out “notice” and insert “warrant”.
Amendment 181, in clause 80, page 63, line 6, leave out “notice” and insert “warrant”.
Amendment 199, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.
Amendment 182, in clause 80, page 63, line 7, leave out “notice” and insert “warrant”.
Amendment 183, in clause 80, page 63, line 8, leave out “notice” and insert “warrant”.
Amendment 200, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.
Amendment 201, in clause 80, page 63, line 12, leave out subsection (b).
Amendment 184, in clause 80, page 63, line 14, leave out “notice” and insert “warrant”.
Amendment 185, in clause 80, page 63, line 16, leave out “notice” and insert “warrant”.
Amendment 193, in clause 80, page 63, line 19, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 194, in clause 80, page 63, line 24, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 202, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.
Amendment 249, in clause 80, page 63, line 25, leave out “and the Commissioner”.
Amendment 186, in clause 80, page 63, line 27, leave out “notice” and insert “warrant”.
Amendment 187, in clause 80, page 63, line 28, leave out “notice” and insert “warrant”.
Amendment 188, in clause 80, page 63, line 30, leave out “notice” and insert “warrant”.
Amendment 203, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.
Amendment 197, in clause 80, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 189, in clause 80, page 63, line 33, leave out “notice” and insert “warrant”.
Amendment 204, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 210, in clause 83, page 64, line 13, leave out “notice” and insert “warrant”.
Amendment 205, in clause 83, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 206, in clause 83, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 211, in clause 83, page 64, line 22, leave out “notice” and insert “warrant”.
Amendment 207, in clause 83, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 212, in clause 83, page 64, line 27, leave out “notice” and insert “warrant”.
Amendment 213, in clause 83, page 64, line 28, leave out “notice” and insert “warrant”.
Amendment 214, in clause 83, page 64, line 31, leave out “notice” and insert “warrant”.
Amendment 215, in clause 83, page 64, line 32, leave out “notice” and insert “warrant”.
Amendment 216, in clause 83, page 64, line 34, leave out “notice” and insert “warrant”.
Amendment 217, in clause 83, page 64, line 36, leave out “notice” and insert “warrant”.
Amendment 218, in clause 83, page 64, line 37, leave out “notice” and insert “warrant”.
Amendment 208, in clause 83, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 370, in clause 83, page 64, line 39, leave out “notice” and insert “warrant”.
Amendment 372, in clause 83, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 209, in clause 83, page 64, line 41, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 219, in clause 83, page 65, line 7, leave out “notice” and insert “warrant”.
Amendment 221, in clause 83, page 65, line 9, leave out “notice” and insert “warrant”.
New clause 7—Persons who may apply for issue of warrant—
“(1) Each of the following organisations may apply for a communications data retention warrant—
(a) a police force maintained under section 2 of the Police Act 1996,
(b) the Metropolitan Police Force,
(c) the City of London Police Force,
(d) the Police Service of Scotland,
(e) the Police Service of Northern Ireland,
(f) the British Transport Police Force,
(g) the Ministry of Defence Police,
(h) the Royal Navy Police,
(i) the Royal Military Police,
(j) the Royal Air Force Police,
(k) the Security Service,
(l) the Secret Intelligence Service,
(m) GCHQ, and
(n) the National Crime Agency.”
New clause 10—Requirements that must be met by warrants—
“(1) A warrant issued under this Part must name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates.
(2) A warrant issued under this Part must describe the investigation or operation to which the warrant relates.
(3) A warrant issued under this Part must relate to one or more of the following purposes—
(a) in the interests of national security, or
(b) for the purpose of preventing or detecting serious crime, where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed, or
(c) for the purpose of preventing death or injury.
(4) A warrant may only be issued under this Part if there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation or operation to which the warrant relates.”
Keir Starmer
I will not say, at this stage, that I am withdrawing all of those amendments.
Keir Starmer
It is a joke, Ms Dorries. We now come to a very important clause. In some respects, over the last part of Thursday and today we have been working backwards through the way in which the functions will be exercised, because clause 78 is the starting point in relation to communications data. It relates to the power to require retention of data in the first place, and everything we have discussed has been about how those data can be filtered and accessed after they have been retained. It is a very important clause.
I draw attention to the breadth of the clause, which states:
“The Secretary of State may by notice…require a telecommunications operator to retain relevant communications data if the Secretary of State considers that the requirement is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 53(7)”.
The first thing that crops up in relation to the clause is what the test for retention is. The test is, of course, necessity and proportionality but the real question is: what does that necessity and proportionality bite on? That pushes us straight back to clause 53(7), which is problematic because it sets such a low threshold for these extensive retention powers.
There should be no doubt that this provision gives the Secretary of State the power to require the retention of a huge amount of data. There may be circumstances in which that is necessary and proportionate, but the test for whether that power is exercised is pushed all the way back to clause 53(7). To take an example that we touched on last week, extensive data can be retained
“for the purpose of preventing or detecting crime”—
any crime. Any crime of any level can trigger a power to retain data. The importance of the issue of retention over that of access is that at this stage it is about retaining the data of those who are not necessarily suspects or targets but anybody whose data come within the types that are intended to be retained. It is a very wide provision.
Sign-off is by the Secretary of State, so there is no double lock and no reference to a judicial commissioner here. The Secretary of State operates the powers, which are very wide. Clause 78(2) states that
“a retention notice may…relate to a particular operator”;
it may
“require the retention of all data or any”;
it may
“identify…periods for which data is to be retained”;
it may “contain…restrictions” and
“make different provision for different purposes,”;
and it may “relate to data” that are not even in existence at the time. These are very wide-ranging powers triggered by the test set out in clause 53(7), and that is a cause of significant concern. The retention period is 12 months, so this is an extensive hoovering-up exercise.
It is clear that the clause applies to internet connection records, because that is stated in subsection (9). We touched on internet connection records last week in relation to when internet connection records are to be accessed. Now, I touch on it for a different purpose: to highlight how all our internet connection records can be swept up in a data retention notice issued under this provision.
For that purpose, one obviously starts with the definition of internet connection record in clause 54(6)(a) and (b), which we looked at last week. I will not read it out again but just give some examples of what is intended to be included. I will do so in chronological order. The operational case for the retention of internet connection records was published in August last year. Page 3 made it clear that internet connection records are:
“a record of the internet services that a specific device connects to—such as a website or instant messaging application—captured by the company providing access to the internet”.
So that is within the scope of an internet connection record, as set out in the operational case of August 2015. An annexe setting out terminology and definitions was put in evidence before the Joint Committee in January this year, which made it clear that not only web and IP addresses are included, but names and addresses, email addresses, phone numbers, billing data, customers, users, and so on. In the explanatory notes to the Bill, paragraph 2.30, on clause 78(9) makes it clear that,
“communications data that can be retained includes internet connection records. Internet connection records, which are defined in clause 54(6), are a record of the internet services that a specific device connects to—such as a website”
That is therefore consistent with the operational case.
What is swept up under clause 78 are internet connection records, which means connections to the internet and websites to which any device has connected. When anyone uses a device to connect to a website, that is recorded by the provider and comes within the definition. It therefore comes within the retention order. That is what the clause gives the Secretary of State power to retain.
It is fair to point out that clause 54(4), which deals with accessing the data that are retained, says that the access through an authorisation can be allowed only if the purpose is to identify: which person is using the internet, which internet service is being used, where the person or apparatus whose identity is already known is, and so on. It is true to say that on the point of access there is restriction of the way in which internet connection records are accessed, but we need to be absolutely clear that for the purpose of retention, it is a record of all websites visited or accessed by a device.
Mr Hayes
I do not doubt that my hon. and learned Friend the Solicitor General will deal with these points at some length, but is it not fair to say—the hon. and learned Gentleman is in the mood to be fair—that the two subsequent clauses both build a set of safeguards into the system and provide for a review of the system? There is further work in the Bill that caveats what might be taken to be the extremes of his argument.
Keir Starmer
I am grateful for that intervention, and I accept that there are safeguards in subsequent provisions. I will be corrected if I am wrong, but on the face of it at least—I am not saying they are incapable of a review—the safeguards do not restrict the definition of an internet connection record in a way that would prevent websites visited being swept up in the retention order.
Keir Starmer
The message to my and all of our constituents is that, even if they are not a target, a record of the websites they have visited can be retained under a data retention order, and if retained will be retained for 12 months—every website they have visited. But if somebody later wants to access it, there is then a tighter test for that. The chilling effect of clause 78 is that the websites visited will be retained if a retention order is issued. We need to be absolutely clear about that. The tighter definition does not kick in until a later stage of the exercise, and that is a cause of real concern to our constituents, certainly to the people who have engaged with me on the topic, and to our fellows across both sides of the House.
Joanna Cherry
I note what the hon. and learned Gentleman says about web addresses being revealed. Is it not also the case that we see from the data released by the Home Office, after being pressed about its factsheet accompanying ICRs, that what will be revealed is not only web addresses and IP addresses, but the names, addresses, email addresses, phone numbers and billing data of customers—our constituents?
Keir Starmer
I cannot double check on my feet, but that sounds like the further evidence that was put before the Joint Committee when it was in the middle of its deliberations. In fairness, the Home Office did go beyond websites to include some, maybe all, of the matters to which the hon. and learned Lady just referred.
The way this will operate in practice is a cause of real concern. The Secretary of State, without the double check of a judicial commissioner, and operating against a low-level threshold—clause 53(7)—can issue a retention order that will permit the retention of a record of all the websites that somebody has visited. That record will then be kept for 12 months, albeit with a different test if it is to be accessed later.
The amendments—I think you have called them the first set of amendments, Ms Dorries—are intended to construct in the first instance a different framework around this power, because it is so extensive, and put it in the hands of a judicial commissioner rather than the Secretary of State. That would provide a greater safeguard in relation to clause 78, with independent oversight through the function of the judicial commissioner. Alternatively, amendments 152, 153 and 222 would give the Investigatory Powers Commissioner some oversight. In other words, the intention behind these amendments is to put some rigour and independence into the exercise of what is a very wide power that, in fact, is the starting point for the exercise of all the other powers under the parts of the Bill that we are now concerned with.
Anxiety has been expressed on a number of occasions about cost. Huge amounts of data could be required for retention under clause 78. The Government have estimated the cost at £170 million. That is considered to be a gross underestimate by those who will no doubt be called upon to actually retain the data. For those reasons, these amendments are intended to tighten up a clause that is very wide and very loose. It permits a huge amount of data to be retained, including websites visited by you, by me, or by our constituents.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a great pleasure to rise as part of this ongoing scrutiny, and to offer my hon. and learned Friend the Member for Edinburgh South West brief respite in this Committee. It is also a great pleasure to serve under your chairmanship, Ms Dorries. It is great to follow the hon. and learned Member for Holborn and St Pancras, who in his customary fastidious and engaging manner has covered in a short space of time all the aspects of many amendments. Some of that bears repeating, and I will speak to new clause 10, which is tabled in my name and that of my hon. and learned Friend the Member for Edinburgh South West.
My hon. and learned Friend spoke at length about the important role that the judiciary, in the form of judicial commissioners, should bring to this process. We do not think it is good enough that the Bill only proposes to use judicial commissioners to review the process used by the Secretary of State in making a decision. The Government may claim that it is important that the Home Secretary retains the power to issue retention notices to internet service providers, as it will ensure that democratic accountability is a salient feature of the process, but I do not accept that to be the case. In fact, I would argue that because of the political arena that any Home Secretary operates in, it is right that this power is handed to and delegated to an independent official such as a judicial commissioner.
It is also worth noting that we know very little of the various notices that the Home Secretary issues, and as such there is no possible opportunity to hold her to account for them. Building the role of judicial commissioners into this part of the process will help to ensure that we have appropriate checks and balances when it comes to the retention of communications data. This is vitally important, because it is the proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by state bodies, and to oversee the application of law to individuals and organisations. Liberty rightly points out that judges are professionally best equipped to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully.
I turn now to new clause 7. Schedule 4 provides a lengthy list of bodies that are able to access or retain data, including several Government Departments, such as the Department for Transport, and a range of regulatory bodies, such as the Food Standards Agency and the Gambling Commission. This suggests that access to communications data may be allowed for a range of purposes which may be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.
Mr Hayes
I draw the hon. Gentleman’s attention to clause 79, which we are not debating at the moment but which is directly relevant to the point he made about proportionality. Clause 79(1)(a) states:
“(1) Before giving a retention notice, the Secretary of State must, among other matters, take into account—
(a) the likely benefits of the notice”.
To me, that would be a pretty strong way of enforcing proportionality. Yet the hon. Gentleman is in his peroration claiming that that would not be taken into account, or not sufficiently so.
Gavin Newlands
I am grateful for the Minister’s intervention. I appreciate that that is a safeguard, but we must ask whether those Departments should be getting access in the first place.
Mr Hayes
I do not want to be unnecessarily brutal with the hon. Gentleman, but either he is making an argument about proportionality or he is not. If he is saying that nothing is proportional, then it should not happen at all, that is hardly an argument about proportionality. Those of us who take a more measured view of these things are considering whether such collection and access to data are proportionate. Proportions by their nature require an assessment of balance, do they not? Yet the hon. Gentleman is suggesting that the scales are weighted all on one side.
Gavin Newlands
The Minister did not actually address why these Departments need access to these data in the first place. I appreciate the point that he is making, but these Departments should not, in my view, require access to this information.
Joanna Cherry
The Minister talked about the duty to take into account the likely benefits of the notice, but does my hon. Friend agree that something may be beneficial without being necessary?
Gavin Newlands
I agree with my hon. and learned Friend. We are not opposed to every measure in the Bill. There are benefits, but unfortunately they are not covered by enough safeguards and are not drawn tightly enough. I would like to make progress but I will give way once more.
Simon Hoare (North Dorset) (Con)
I apologise if I missed the hon. Gentleman outlining the Departments, but could he tell me which ones should be excluded and not have access to this?
Gavin Newlands
That has been dealt with at length. I have already mentioned the Food Standards Agency as one of the regulatory bodies. Schedule 4 does currently provide a lengthy list of bodies that should be able to access the data. New clause 7 would ensure that only the police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.
New clause 10 outlines the requirements that must be met by warrants.
Simon Hoare
As, for example, the Food Standards Agency cannot itself bring a prosecution, may I conjure in the hon. Gentleman’s mind a situation whereby a criminal gang, as part of its activities, seeks to bring into the United Kingdom for sale to the British public a contaminated food source? Is that not something to which the Food Standards Agency should have access to information in order to ensure that citizens and consumers are safe?
Gavin Newlands
I understand the hon. Gentleman’s point, but surely the police would be interested in that scenario and would have access.
Simon Hoare
In the abstract—by golly, isn’t this debate being held in the abstract?—the hon. Gentleman is absolutely right, but we invest the powers with the agency. The police are not an infinite resource. If we have the many who are charged with multiple areas of our lives—
Gavin Newlands
These powers are very large and we should limit who has access to them. The police can pass on the relevant information to the agencies that can deal with that particular incident, but in my view, only the police and security forces should have access. I want to finish my point on new clause 10 but I will allow one last intervention.
Victoria Atkins
I want to understand the hon. Gentleman’s understanding of how cases are prosecuted in England and Wales, if not in Scotland. Is the hon. Gentleman saying that Her Majesty’s Revenue and Customs, for example, should not have access to any of these powers? Is the hon. Gentleman saying that the investigation of economic crime that can potentially alter the GDP of another member state is not worthy of these powers? I wonder what the differentiation is between those organisations he thinks should have these powers and those that cannot. At the moment, it is not clear.
The Chair
Order. May I just ask that interventions be kept short, please, or we will be here all night? Mr Newlands.
Gavin Newlands
I appreciate what the hon. Lady says but, as I am not a lawyer, I am struggling to distinguish the difference between Scottish and English law. Perhaps my colleague could address that.
Joanna Cherry
My hon. Friend will no doubt agree that, in Scotland at least, it is the police who investigate serious crime, under the direction of the Lord Advocate.
Gavin Newlands
The point has been dealt with, and I think we need to move on. The effect of new clause 10 —[Interruption.] I will finish, amid the chuntering. These new clauses require data retention notices to be issued only for specific investigative or operational purposes, to obtain specified data where those data are believed to be of substantial value. We do not believe, however, that the role of communications data in the investigation of crime justifies the Secretary of State’s mandate for blanket retention of historical communications data for the entire population for 12 months.
Christian Matheson (City of Chester) (Lab)
I am delighted to see you back in the Chair, Ms Dorries, as I break my couple of sessions’ silence; it is always very reassuring. I certainly do not wish to keep the Committee here all night, but I will reiterate a point that I made earlier in our considerations, and that relates to the retention of certain data. As my hon. and learned Friend the Member for Holborn and St Pancras pointed out, we understand the need for data retention. However, on looking at the Bill, I am still not entirely satisfied that the Government have taken into account the need for additional security for data retention.
I look to the Minister for reassurance that, when telecommunications and internet providers and suchlike are obliged to retain data, there is a consequent obligation on them to maintain it securely. We know that several such providers have problems with internet security: we saw that with the TalkTalk hack, and we believe another large provider has been hacked recently. Those attacks were on personal data; the Solicitor General and I have had exchanges in this room about the potential for charging them as theft—about whether the sanctions against somebody who committed that offence would be contained in existing legislation.
This part of the Bill needs to look at obliging or maintaining a minimum acceptable level of security, to provide security and privacy for people whose data may have been accepted. I realise that it might not necessarily be covered in detail in the new clause, but now might be a good time for the Ministers to consider whether they believe internet security and the security of personal data held under the terms of clause 79 should be considered in the Bill. Do they believe guidance should be given to telecommunications providers to maintain that security, or do they feel that it is not relevant and that they are quite satisfied with the status quo? I must say that I am not. Notwithstanding the need for the retention of individual data, as described so eloquently by my hon. and learned Friend, it remains a major concern of mine that individual privacy and data are at risk: it puts a question mark over the whole clause and over the areas we are discussing.
The Solicitor General
I am grateful to hon. Members for a wide-ranging debate. I would first like to reiterate on behalf of the Government the position adopted by the Joint Committee on the draft Investigatory Powers Bill, which quite clearly indicated its conclusion that the case was made for a retention period of up to 12 months for relevant communications data. In the report from David Anderson QC, “A Question of Trust”, recommendation 14 is:
“The Home Secretary should be able by Notice (as under DRIPA 2014 s1 and CTSA 2015 s21) to require service providers to retain relevant communications data for periods of up to a year”.
There we have it: the Government are acting upon the specific endorsement of an independent reviewer and a Joint Committee of this House. There is an element of the waving of the proverbial shroud when it comes to the retention of data, because the word “relevant”, which is contained in the second line of clause 78(1), is the governing word here. It is very important to remember that this is not carte blanche for the Secretary of State to authorise communications service providers to retain everything for 12 months. That is not the case. Where there is no case of necessity and proportionality for a 12-month period, a shorter period must be adhered to. Indeed, if the material is not relevant, it falls outwith the ambit of any such authorisation.
I reassure the hon. Member for City of Chester, who makes quite proper points about the integrity of data, that he is right to make them. That issue affects all those in this room and beyond. He is also right to allude to the criminal law. I reassure him that communications service providers have to comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, which together contain those requirements that the data is appropriately secured. When he has the time—which I am sure is as precious to him as it is to the rest of us—chapter 16 of the draft communications code of practice contains an entire set of provisions relating to the security, integrity and, indeed, destruction of retained data, which very much underpin the principles of why CSPs have to operate and will give him the reassurance that he properly seeks about the position with regard to individual data and people’s privacy.
Data retention legislation has existed in this country since the Anti-terrorism, Crime and Security Act 2001, which allowed the Secretary of State to enter into voluntary agreements with telecommunications operators so that they could retain data that otherwise would be deleted. The Data Retention (EC Directive) Regulations 2007 were the first piece of data retention legislation that provided for the Secretary of State to require the retention of such data. We currently have DRIPA 2014 and the data retention regulations of that year. We hope to replace those with the provisions in the Bill. A very important point is that there is nothing new about these proposals. Our data retention legislation has always had the Secretary of State involved in the process and there are very good reasons for that. It has worked successfully until now. As I have indicated, it has been recommended to us by David Anderson.
The amendments that have been tabled seek to drive a coach and horses through all of that. There is a simple and blindingly obvious reason why we wish to maintain the system of data retention. For example, when a crime happens or a child goes missing, it is impossible to know in advance which data would be relevant in any subsequent investigation. It is therefore important that we require the retention of all relevant communications data that matches a certain description wherever it is necessary and important. Because it is impossible to know which data will be the most relevant in advance of any crime, it is impossible to know whether a specific piece of data will be of value to MI5 in locating a terrorist, for example, or to the National Crime Agency in identifying a paedophile, or for any other legitimate purpose. For that reason it does not make sense for those authorities to apply for retention warrants individually. What makes sense is for the requirement of all relevant public authorities to be considered together. The person best placed to do that is the Secretary of State. Public authorities set out their requirements for data retention to the Home Office and they are then carefully considered. As they usually overlap, the Secretary of State is able to identify the specific telecommunications operators and specific data types that it is necessary and proportionate to make subject to data retention notices. As the full costs of data retention are covered by the Secretary of State, only he or she can decide whether or not the benefits of data retention are proportionate to the costs.
There has been some discussion about cost again today. The £170 million figure is based on the cost of our anticipated implementation, which takes into account data that is already obtained under existing legislation. We noted the evidence of BT when it talked about the costs being dictated by its implementation approach, and we continue to discuss implementation with those communication service providers likely to be inspected. Whatever the final cost, however, the important underwriting by the Government is a vital factor in giving reassurance to the industry, not only on the practicability of these measures, but on the importance therefore of involving the Secretary of State.
My worry is that if we went down the road proposed by the amendments, we would end up with a rather confused system that would not allow for the overall benefits of retaining a particular type of data, because the judicial commissioner would only ever be able to consider the benefits to the particular public authority applying for a warrant. It would therefore be impossible to judge the overall necessity and proportionality of requiring a particular company to retain a particular dataset.
We have heard about new clause 10 and its provisions. Given that it is impossible to predict in advance what data would need to be retained, this approach relies on data being retained only after a crime has been committed and/or an investigation has begun. Preservation only works if the data are there to preserve and it is of limited benefit without an existing retention scheme. Without data retention, data protection rules require that the data that are no longer needed for business purposes must be deleted. Without data retention, the data that are needed would not exist. Therefore, the regime of warrantry—the double lock, indeed the proposals put forward by Opposition Members—none of it would matter, because the material would not be there. That is particularly relevant when it comes to the increasing move of criminals and their ilk away from conventional telecommunications to the internet and internet connections.
A number of reports published by the EU Commission show the value of communications data and why the concept of data preservation, as envisaged in new clause 10, is not a viable alternative. In a Europe-wide investigation into online child sexual exploitation, of the 371 suspects identified here in the UK, 240 cases were investigated and 121 arrests or convictions were then possible. Of the 377 suspects in Germany, which does not have a data retention regime, only seven could be investigated and no arrests were made.
I have explained why the existing data retention regime that the Bill replicates is the appropriate model. May I deal with the change proposed by a set of amendments that involve changing the word “may” to “must” in clause 78(2)? That would require a data retention notice to cover certain issues. I am sympathetic to the aim of the amendment, because I am in favour of specific requirements, but the amendment is misconceived because subsection (7) already requires that a retention notice must specify the operator to whom it relates, the data which are to be retained, the period of retention, the requirements and restrictions imposed by the notice, and information on costs. Subsection (2) sets out the scope of what a notice may require and subsection (7) requires that the notice must make clear what is required. The two subsections are therefore aimed at different things.
The effect of this amendment would be to require a notice to cover issues that it might not have any reason to cover. For example, a retention notice may
“make different provision for different purposes”.
With respect, it therefore does not make sense to say it must make different provision for different purposes, because a notice may not relate to those different purposes. I would argue that there is therefore nothing to be gained by moving these amendments. That is all I wish to say, but for those reasons I urge hon. Members to withdraw the amendments.
Keir Starmer
Clause 78 is important for all the reasons that I have set out, but at this stage, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gavin Newlands
I beg to move amendment 303, in clause 78, page 61, line 12, leave out—
“of all data or any description of data”
and insert
“of specified relevant communications data”.
The Chair
With this it will be convenient to discuss the following:
Amendment 304, in clause 78, page 61, line 14, leave out paragraph (2)(d).
Amendment 305, in clause 78, page 61, line 16, leave out paragraph (2)(e).
Gavin Newlands
I will not detain the Committee for too long; these issues have already largely been addressed. Amendments 304 and 305 seek to remove paragraphs (d) and (e) from clause 78(2). In a Bill replete with vagueness, those two subsections stand out as being particularly vague. The new clause that I will come to in a moment would require a data retention notice—or warrant, as we would wish—to be issued only for a specific investigative or operational purpose. The SNP has tabled amendments that will bring greater clarity to when and why a warrant would be issued.
As we know, communications data are defined as data that would be used to identify, or assist in identifying, the who, where and how. However, instead of allowing a blanket surveillance approach that treats everyone as a suspect, the amendments would allow the police to apply to a judicial commissioner for targeted retention warrants, in which data are required for the purposes of a specific investigation into serious crime, or for the purpose of preventing death or injury. I trust that these amendments are acceptable to the Government.
The Solicitor General
I rise to address the concerns of the hon. Gentleman. It is good to hear from him; I should have said that during the last group. He has made the point about his concerns of vagueness. However, I would argue that it is very important that a notice can have a degree of flexibility within it, because a single telecommunications operator may provide a number of different communications services, such as mobile telephony and internet access. However, there may be different complexities and sensitivities about the different types of communications data that are generated by those services. Considerable preliminary work is carried out between the Government and telecoms operators in advance of the service of a retention notice. That covers a number of issues, including the type of data that will be retained, the complexities of the operator’s systems, and the relevant security requirements. Flexibility is needed to ensure that the notice can appropriately reflect those issues, and that it imposes the minimum requirements necessary to meet the operational requirements.
What we are counter-intuitively getting at is to make sure that there is necessary give and take within the system to prevent what the hon. Gentleman and I would regard as an overweening approach from the Secretary of State, which would impede the ability of communications service providers to carry out their operations. For that reason, I respectfully urge him to withdraw the amendment.
Gavin Newlands
I hear what the Solicitor General has said, but I do not wholly agree with him. I reserve the right to bring this back at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I beg to move amendment 306, in clause 78, page 61, line 18, at end insert—
‘(2A) A retention notice may not require a telecommunications operator to retain any data belonging to a third party data, unless that third party data is retained by the telecommunications operator for their own business purposes.”
The Chair
With this it will be convenient to discuss amendment (a) to amendment 306, leave out “notice” and insert “warrant”.
Joanna Cherry
Amendment 306 would insert at the end of clause 78(2) a provision in relation to third party data. Third party data are defined in the code of practice as data that a communications service provider is able to see
“in relation to applications or services running over their network…but does not process that communications data in any way to route the communication across the network”.
To its credit, the Home Office has been unequivocal that such third party data would not be covered in the Bill; the Home Secretary informed the House on 4 November 2015 that the Bill
“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, 4 November 2015; Vol. 601, c. 969.]
The draft code of practice for communications data states at paragraph 2.61:
“A data retention notice can never require a CSP to retain the content of communications or third party data”.
The overly broad definition of relevant communications data, which now extends to 16 different definitions and sub-definitions, could however be interpreted as giving the Secretary of State the power to require a communications service provider to retain third party data, since the definition does not expressly exclude third party data unless this amendment is agreed. There are currently no clauses in the Bill that explicitly state that communications service providers will not be required to retain third party data. That is the purpose of the amendment. Given that they have been so clear on the Floor of the House and in the code of practice that that is their intention, if the Government will not accept the amendment, the Minister must tell us why. Where we are dealing with such potentially intrusive powers, we must be as clear as possible.
The Solicitor General
Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.
The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.
One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.
It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.
Joanna Cherry
I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.
Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)
Question put, That the amendment be made.
Gavin Newlands
I beg to move amendment 317, in clause 78, page 61, line 34, leave out “(or description of operators)” and insert “or operators”.
The Chair
With this it will be convenient to discuss the following:
Amendment 315, in clause 78, page 61, line 37, leave out “(or description of operators)” and insert “or operators”.
Amendment 319, in clause 78, page 61, line 42, leave out “(or description of operators)” and insert “or operators”.
Amendment 328, in clause 79, page 62, line 33, leave out “(or description of operators)” and insert “or operators”.
Amendment 338, in clause 80, page 62, line 42, leave out subsection (3).
Amendment 361, in clause 83, page 64, line 16, leave out “(or description of operators)” and insert “or operators”.
Amendment 374, in clause 83, page 65, line 1, leave out “(or description of operators)” and insert “or operators”.
Amendment 375, in clause 83, page 65, line 8, leave out “(or description of operators)” and insert “or operators”.
Gavin Newlands
The SNP has tabled the amendments to provide for clear, appropriate and limited grounds on which data retention warrants may be issued. The amendments require that the data to be retained are specified and that organisations served with warrants to retain communications data should be identified rather than merely described.
Amendments 315 and 317 affirm that organisations that have been served a notice or warrant to retain the communications of their customers are properly and explicitly identified. The term “description of operators” is far too vague and we urge that it is changed to “or operators”. Amendment 328 ensures that those organisations are defined and named before a retention notice can be issued. Amendment 338 removes the possibility of the Home Secretary being able merely to describe the telecommunications operators that she wants to target. Amendments 361, 374 and 375 provide the basis for a concrete description to be included when there is any variation of a notice.
The amendments attempt to bring to the Bill some clarity, which is sadly lacking. It is not good enough that the Home Secretary can sign a notice that merely describes who is impinged on or directly affected by these intrusive powers, because that approach opens up the space for the powers to be abused. We need to act to ensure that, as much as possible, we operate a targeted approach.
The Solicitor General
I understand the purpose behind the amendment in that, in the opinion of the hon. Member for Paisley and Renfrewshire North, it would ensure greater specificity in the giving of notices. However, I shall give a brief example of what a “description of operators” might be. With this provision we would have been able to give the same retention notice to all wi-fi providers supplying wi-fi to the Olympic park in London during the 2012 Olympics. In these circumstances the operators are providing precisely the same kind of communications service and the data required to be retained are the same. Whether a notice relates to a description of operators or to a single operator, it can only contain what the Bill’s provisions allow and the Secretary of State must consult with the operators to which it relates. Operators also have the opportunity to refer the notice back to him or her in relation to any aspect of it. Therefore, on that basis, I invite the hon. Gentleman to withdraw his amendment.
Gavin Newlands
I am content to withdraw the amendments at this stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I rise to speak to amendment 152, in clause 78, page 61, line 36, at end insert “, and
(c) only when approved by the Investigatory Powers Commissioner.
(5A) In deciding whether to approve a notice, the Investigatory Powers Commissioner must determine whether a notice is—
(a) that the conduct required by the notice is necessary for one or more of the purposes in section 53(7); and
(b) that the conduct required by the notice is proportionate to what is sought to be achieved by that conduct.”
The Chair
With this it will be convenient to discuss the following:
Amendment 153, in clause 78, page 61, line 38, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.
Amendment 222, in clause 83, page 64, line 21, at end insert “and
( ) the variation has been approved by the Investigatory Powers Commissioner.”
Keir Starmer
For better or for worse, I spoke to these amendments during my submission on earlier amendments. I do not have any additional points and I will not press the amendment.
Gavin Newlands
I beg to move amendment 320, in clause 78, page 62, line 13, leave out subsection (9) and insert—
“(9) In this Part ‘relevant communications data’ means—
(a) communications data of the kind mentioned in the Schedule to the Data Retention (EC Directive) Regulations 2009 (SI 2009/859), or
(b) relevant internet data not falling within paragraph (a).
(9A) In this part ‘relevant internet data’ means communications data which may be used to identify, or assist in identifying, the sender or recipient of a communication (whether or not a person).”
Thus far while debating the clause we have covered providing for the judiciary, in the shape of judicial commissioners, to issue data retention warrants rather than notices, and removing the Secretary of State from the role, making it clear on the face of the Bill who is eligible to apply for a warrant; limiting the grounds for the issuing of warrants; ensuring that all targets are identified and not described; and that the data to be retained should be specified. The fact that we in opposition have had to table so many amendments highlights the main problem in the drafting of the Bill: vagueness. The Bill is wholly lacking in specificity and clarity and nothing highlights that more than the issue of internet connection records.
As trailed by my hon. and learned Friend the Member for Edinburgh South West during the debate on clause 54, the SNP has significant reservations about the provisions on internet connection records as drafted in the Bill. Not only are the definition and legality of the provisions unclear, but the Government's case for ICRs has simply not been made. Amendment 320, which stands in my name and that of my hon. and learned Friend, would effectively remove ICRs from the Bill and replicate the Data Retention and Investigatory Powers Act 2014 in its original form, to ensure that the definition of “relevant communications data” is consistent with current legislation. That will help provide the legal certainty and clarity that the industry needs to understand its legal obligations appropriately. At the moment the industry is having difficulty in understanding what exactly the Government want and require it to do. Although the industry is willing to work with the Government to try to implement their vision for ICRs, it does not know what ICRs are, and it looks as though the Government do not altogether know either.
Despite the significance of ICRs, very little detail about them has been provided, with the Government consistently saying that the detail can be worked out later. That lack of clarity is simply not good enough when the Government are asking us to sign off on legislation that will have a significant impact on the industry and impinge significantly on the right to basic privacy that our constituents, quite rightly, expect. Indeed, the Internet Service Providers Association says:
“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”
I could not agree more. As has been mentioned already, the clearest definition of an ICR is not in the Bill itself but in the document “Operational Case for the Retention of Internet Connection Records” from the Home Office. That describes ICRs as
“a record of the internet services that a specific device connects to – such as a website or instant messaging application – generated and processed by the company providing access to the internet.”
A concrete definition of what specific data form an ICR, exactly who has access, precisely what for and exactly who must retain the data must be on the face of the Bill.
The Home Office may want to have a “flexible” definition, as typified in clause 54(6), but given that we are dealing with a Bill that may have the biggest impact on civil liberties than any other Bill for generations, that simply will not cut the mustard. The Intelligence and Security Committee helpfully referred to ICRs as providing information on the “who, when and where” of someone’s internet use. The Government claim that they have no plans to acquire the content of the said communications, but DRIPA and RIPA suggest that that does not matter, given that acquiring the sort of information that is going to be held under an ICR can provide important details on the date, time, location and type of communication used. Liberty suggests that ICRs will provide a detailed and revealing picture of somebody’s life in the digital age. That point was highlighted by the Information Commissioner when he said that ICRs can reveal a great deal about the behaviours and activities of an individual. In fact, Stewart Baker, former senior counsel to the United States National Security Agency, stated that it
“absolutely tells you everything about somebody’s life. If you have enough metadata, you don’t really need content.”
Based on those statements alone, it is important to assess the proportionality and necessity of ICRs, but also question whether they are in accordance with the law. We live in a digital world and, quite rightly, our constituents place a lot of importance on their right to privacy as they use the internet. We accept that the security authorities need adequate powers to keep us safe and it is only proper that the Government consider what new powers they need for the digital age. However, like most people, I am deeply concerned about the complete lack of specifics about ICRs. In publishing such widely drafted legislation and telling the sector that the detail will come shortly, the Government are asking us all to trust them. They are asking us, as Members of this House, to pass and approve legislation without knowing what its full impact, costs or consequences—unintended or otherwise—will be. In effect, they are asking us to sign a blank cheque on much of the communications data powers. Is that really a proper and effective way to devise and develop legislation that has such civil liberty repercussions?
The SNP is not opposed to certain authorities having the power to obtain communications data or internet connection information critical to their investigations. We fully accept that some power is not only necessary, but crucial, for law enforcement in the 21st century. However, rather than a blanket collection of the websites that everyone in the UK has visited in the last 12 months, we prefer a specific, targeted solution. We agree that intercepting someone’s communication data can be an important part of any criminal investigation and it is important that we do that for those suspected of being engaged in criminal activity. There is an obvious difference, though, in intercepting the communications of those suspected of criminal activity and those of the vast majority of our constituents, who are, by and large, law-abiding citizens.
The Government are asking companies to hold and retain information on all the internet sites that an individual visits. It is unclear how much information the Government want those companies to hold, but it is clear that it is going to be a huge amount of data and we still do not know about the feasibility or costs involved. The sort of information that the Government want companies to retain could be sites that the person has mistakenly accessed; it could be a website that the person has spent only a few seconds on; it could also be an internet site that a person has accessed for deeply personal reasons, such as receiving advice on domestic violence or on health matters. Putting the sensitivity and privacy argument to one side, we need to consider whether the Government are going to have too much information at their disposal and thus, inadvertently, make it harder for our security services to complete their investigations.
During the evidence session I made a point about mobile devices always being connected to the internet via various apps, following a similar point made by the hon. and learned Member for Holborn and St Pancras. Those applications are constantly creating ICRs and that will increase as phones become even more advanced and able to process more information more quickly, with bigger memories.
It is unclear how many automatic ICRs are being created by my phone alone, but the Government are demanding that the various communications companies retain these ICRs for a period of 12 months. Conversations with people in the industry have shown that companies have yet to figure out how they will separate the automatic data that are generated through a third-party app from the data that are generated manually by a user. According to the definitions in the Bill, both will generate the same data, showing that the user has accessed an app and recording the date, location, time and so on of that use.
Another industry expert told me that a single app could generate up to 100 ICRs per minute—that is just one single app. I am unsure of the figures for over here, but in America there is an average of 27 apps on every smartphone. If it is the same in the UK, and taking into account the average number of apps and possible connections, this could lead to 2,700 ICRs per phone per minute, or 100,000 ICRs per phone per day. Well over 3 million ICRs could be generated just by the phones in this room. The third party app issue has been raised by the industry time and time again, but it has not been properly addressed by the Government. In evidence given to this Committee, the CEO of BT security, which has been working with the Government, said in response to the third party app issue:
“We are considering whether to propose an amendment to the Home Office on the third party data question, which is the case in point here, and how that should be approached. We think that the principle is that other providers who have that data are the ones who should be subject to it, and that it should be explicit in the Bill”.
I then pressed him on whether at the moment the Bill was not clear enough on that aspect. He replied:
“It could be clearer, and we are thinking about proposing an amendment specifically to over-the-top providers, making it clear that they are responsible for that”.––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 49, Q137-138.]
I have to say, if BT are unsure who is involved, how are the rest of the industry supposed to know? We have to ask whether or not it is necessary or proportionate for the Government to have information and data on the apps that I or anyone else has on their phone. Given these points, among others, I can understand why so many people are calling ICRs a Home Office solution to a police problem, instead of being a police solution to a police problem. This point was articulated during the evidence session by Sara Ogilvie of Liberty, who said:
“It seems clear that, given the bulk nature of these powers, they will not deliver that kind of information in a helpful manner. If anything, it seems more likely to drive criminals to use bits of the internet that will not be captured by the service”.––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 15, Q31.]
We also need to be mindful of the amount of information that we want to expose and the potential for this to be targeted by criminal hackers. When a similar plan to collect web logs was proposed in 2012, the Joint Committee on the draft Communications Data Bill concluded that it would create a
“honeypot for casual hackers, blackmailers, criminals large and small from around the world, and foreign states”.
This wealth of data in the wrong hands could be used for identity theft, scamming, fraud, blackmail and even burglaries, as connection records can show when internet access occurs in or out of the house, representing a daily routine. This is an unacceptable level of risk to inflict on innocent internet users. The Chair of the Science and Technology Committee said:
“There remain questions about the feasibility of collecting and storing Internet Connection Records (ICRs), including concerns about ensuring security for the records from hackers. The Bill was intended to provide clarity to the industry, but the current draft contains very broad and ambiguous definitions of ICRs, which are confusing communications providers. This must be put right for the Bill to achieve its stated security goals”.
Furthermore, not to be outdone, the Joint Committee tasked with scrutinising the draft Communications Data Bill said in its final report that,
“storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people’s interests or activities could be drawn”.
Surely with these warnings, which were issued by such influential and important Committees, the Government should have listened and addressed some of their concerns, but it would seem not. With regard to some of the case studies laid out in “Operational Case for the Retention of Internet Connection Records”, the likelihood of ICRs proving vital in identifying criminals has been questioned by ISPs and technologists. The justification for ICRs being helpful relies on the assumption that online criminals offend using a regular browser or public file sharing service on their own device, using personal internet connections, without employing the most basic of the widely available anonymity tools to avoid detection. The use of VPNs or Tor helps anonymise users of the internet. As such, ICRs will be unusable and, in fact, misleading where such privacy tools have been used. It is obvious for all to see that the more information that is retained, the greater the costs entailed to either the industry or the taxpayer.
When I spoke to people at TechUK last week, they explained that the introduction of ICRs will be a significant change to the industry and that all organisations will have to re-adapt to meet the new expectations and responsibilities that are being put on them. In addition, they are concerned about the new types of technology that they will need to install to allow them to cope with the new demands from Government. For example, they are concerned that many in the industry will have to install new filtering systems to help companies deal with the vast amount of data they now have to retain. It is difficult even to question the feasibility of such demands due to the limited information and detail provided by the Home Office.
Gavin Newlands
This is the first speech I have made in this place that has required an intermission. It has been suggested that I start from the beginning as I cannot remember where I had got to. I am nothing but a crowd pleaser, Ms Dorries, but I have found the place where I left off, so I shall continue.
I was saying that the question whether the Bill is in accordance with the law is up for debate. If this part is left unchanged, Liberty and others suggest that it will be in conflict with human rights law, including breaching the EU charter of fundamental rights and freedoms. In July 2015, the High Court upheld its challenge and struck down sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014, finding them incompatible with the British public’s right to respect for private life and communications, and protection of personal data under articles 7 and 8 of the EU charter of fundamental rights.
In addition, we should be mindful that the challenge against DRIPA is ongoing and that the outcome will have an impact on whether this part of the Bill is lawful, although I suspect not. On that basis, I question whether ICRs will do the job the Government intend them to do. The Home Office has become entrenched with regard to ICRs and its fixation with them is clouding its ability not only to look at alternatives, but to assess whether ICRs are proportionate, necessary or in accordance with the law. The SNP believes that ICRs fail those three basic assessments.
I want to quote an unlikely ally, who, in 2009, said in Committee:
“Our consideration of the regulations comes against the backdrop of an increasingly interventionist approach by the Government into all of our lives, seemingly taking the maxim ‘need to know’ to mean that they need to know everything. Certainly, we need to know what the Government’s intentions are in relation to the creation of a new central database, which would create a central store of our electronic communications.”—[Official Report, Fourth Delegated Legislation Committee, 16 March 2009; c. 6.]
That ally was none other than the right hon. Member for Old Bexley and Sidcup (James Brokenshire), now Minister for Immigration at the Home Office, speaking in a Delegated Legislation Committee on an EC directive with very similar provisions to parts of this Bill. That statutory instrument was passed by the House, but notable opponents included Members who are now Scottish Secretary, Home Secretary and Minister for Security—the Minister in charge of this Bill.
We in the SNP are mindful of the evidence that has been presented and submitted to the Committee, but it is our opinion, backed up by case law, that the power to retain ICRs is incompatible with the right to privacy and the protection of personal data, and I urge hon. Members to amend the Bill and ask the Government to think again.
The Solicitor General
I am grateful to hon. Members for this important debate, which, although it relates to an amendment, inevitably strayed into what is, in effect, the stand part debate on communications data.
The hon. Member for Paisley and Renfrewshire North set out his case comprehensively, but his arguments relate to measures and proposals that are not before the Committee. We have moved a long way from 2009, and certainly from 2012, when the original draft Bill was considered by a predecessor Joint Committee. We are not in the situation where the Government will hold a centralised database. That sort of measure was rightly opposed by my right hon. Friend the Minister for Immigration and other of my hon. Friends at that time, because we are naturally suspicious of an organ of Government directly blanket-holding such data.
That is why this provision is not remotely like that. It does not contain anything like the provisions that the hon. Gentleman rightly cautions against, most importantly because the retention of that data is not in the hands of Government. That arm’s length approach is a key difference, which I am afraid undermines all the seeming quality of his argument.
Gavin Newlands
Will the series of private databases under the Bill be any safer from hacking than a central Government database?
The Solicitor General
The hon. Gentleman makes a proper point about security. This, in respect of the code of practice and in collaboration with the industry, will be at the forefront of everybody’s mind. What is important is that the Government do not have a pick-and-mix or help yourself avenue within which they can mine data for their own capricious purposes.
The framework of the Bill quite properly severely circumscribes the circumstances within which the Government can seek access to that material. Most importantly, when it comes to content, the warrantry system—the world-leading double lock system we are proposing—will apply. An internet connection record is not content; it is a record of an event that will be held by that telecommunications operator. It relates to the fact of whether or not a customer has connected to the internet in a particular way. If it goes further into content, the warrantry provisions will apply. It is important to remember that framework when determining, and describing and putting into context, what we are talking about. The Committee deserves better than indiscriminate shroud-waving about prospects and concerns that simply do not arise from the measures in the Bill.
The hon. Gentleman quite properly raised the Danish experience. The Danish Government and authorities are in regular conversation with the United Kingdom Government. That dialogue goes on because they are naturally very interested to see how our model develops, although there are important differences that should be set out briefly. The Danish legislation was not technology neutral, unlike these proposals, because it specified two options that proved unworkable. We work with operators case by case so that the best option for their network at the appropriate time will be determined. The Bill builds on existing data retention requirements, such as the retention of data necessary to resolve IP addresses, which regime already exists under the Counter-Terrorism and Security Act 2015. The full cost recovery underpinning by the Government means that there is no incentive for communications service providers to cut corners, as I am afraid happened in Denmark. There are important differences between the two.
The hon. Gentleman rightly talks about IPV6. Although it is a great aim and something that all of us who have an interest in this area will have considered carefully, it still is, with the best will in the world, a way away, I am afraid. It will take a long time for all service providers to implement in full, and until then, there will be both types of system. Even with IPV6, CSPs may choose to implement address sharing or network address translation, meaning that it is not the guaranteed solution that perhaps has been suggested. Servers who host illegal material are much less likely to move to that system, meaning that, in practice, IPV4 may well remain with us. We therefore have to act in the interim, because, as has been said, the drift away from what I have called conventional telecommunications to the internet carries on whether we like it or not. We have to face up to the world as it is, rather than the world as we would love it to be, and therefore take into account the fact that we are in danger of being unable to detect criminality and terrorism.
Joanna Cherry
The Solicitor General says we have to face up to the world as it is. Why is it, then, that no other democratic nation in the world is implementing legislation of this sort?
The Solicitor General
The hon. and learned Lady has asked that question before, and I have said to her before that somebody has to step up, try it and make that change. I am proud that the United Kingdom is prepared to do that, as we have done it in so many ways.
Joanna Cherry
Is the Solicitor General aware that it is not that other countries have not looked at the problem? They have looked at the problem and decided that this is not the way to solve it.
The Solicitor General
I am afraid I do not agree with the hon. and learned Lady. What they have looked at is the sort of centralised, governmental-based database that all of us have quite properly rejected. They are looking with interest to see how this particular proposal develops, bearing in mind that it has now been refined through many Committees of the House. Accordingly, I think what we are doing is innovative, world leading and, with its technology-neutral approach to the definitions, striking the right balance.
The problem with the amendment as I see it is not only that it is technically deficient, but that, on close reading, it does not exclude the retention of internet connection records, because it talks about the sender and recipient of communications, which is either end of the communication we are talking about when it comes to ICRs. Let us assume that that is an error. Even if we consider its intention at face value, the problem with going back to the 2009 regulations is that we are returning to the language of dial-up—the sort of non-broadband, non-mobile internet access we were all used to 15 years ago, but which now belongs in a museum. If we imprison ourselves in that sort of language, the danger that I have outlined becomes very real.
What next? Are we going back to the telex or the marconigram? We have to make sure that the language of the Bill keeps pace with the breathtaking scale of technological change. In the words of the hon. Member for Paisley and Renfrewshire North, the amendment just does not cut the mustard and I urge that it be withdrawn.
Gavin Newlands
I hear what the Minister has to say but I am not assuaged by his comments, so this shroud-waver would like to press the amendment to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 175, in clause 79, page 62, line 34, at end insert—
“() the public interest in the protection of privacy and the integrity of personal data; and
() the public interest in the integrity of communications systems and computer networks.”.
Clause 79 sets out those matters to be taken into account before giving a retention notice, as well as likely benefits and the likely number of users. Amendment 175 would add two public interest matters to that list. My argument is similar to the one I made on other provisions. Where matters are to be taken into account, it is important that the protection of privacy and the integrity of personal data and of communications systems are specifically listed. I have moved to a position of thinking that an overarching privacy clause is probably the way to achieve this end; this is therefore a probing amendment and I will not press it to a vote.
The Solicitor General
I am grateful for the way in which the hon. and learned Gentleman states his case. To put it extremely simply, we would argue that the public interest in the protection of privacy and in the integrity of personal data are already factored in by the provisions of the Bill.
First, proportionality must include consideration of the protection of privacy. Secondly, the integrity of personal data being such an important public interest is why clause 81 requires any retained communications data to be of at least the same integrity as the business data from which they are derived. A retention notice will therefore not be permitted to do anything that would undermine the integrity of the data that the operator already holds for business purposes. That is all I want to say about the matter, but I assure hon. and learned Gentleman that those important considerations are at the heart of the processes we have followed.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 ordered to stand part of the Bill.
Clause 80
Review by the Secretary of State
Keir Starmer
I beg to move amendment 179, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.
The Chair
With this it will be convenient to discuss the following:
Amendment 190, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 191, in clause 80, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 192, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 195, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.
Amendment 196, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.
Keir Starmer
As members of the Committee will have observed, these tidying-up amendments are consistent with previous amendments that would have entrusted decision making to a judicial commissioner rather than the Secretary of State. We had the discussion in principle in relation to those earlier amendments, which I withdrew, and I will not repeat my arguments now, although I would like to return to them at a later stage.
Joanna Cherry
As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.
The Solicitor General
The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.
Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 ordered to stand part of the Bill.
Clause 81
Data integrity and security
Question proposed, That the clause stand part of the Bill.
Christian Matheson
I seek the Minister’s guidance. Throughout our considerations, I have spoken of my fears whether data held under this Act are held securely. I hope that clause 81 will address many of my fears; I seek the Minister’s advice on whether it lays responsibility on communications providers to maintain those data securely. I simply reiterate my concern that when theft does take place, there has to be a consideration of an offence of unlawful possession of stolen data, on the basis that the communications provider that has suffered the theft would also be legally responsible for that theft when the provider is in fact a victim of the theft itself. Bodies that seek to obtain illicitly a person’s private communications data may try to make financial gain as a result. Is the Minister confident that clause 81 gives me the kind of assurances that I have been looking for on internet security? Is there sufficient deterrent, in terms of possession of unlawfully obtained data, that might be included later in the Bill?
The Solicitor General
The hon. Gentleman has been consistent in stating his concerns. I assure him that clause 81 contains the sort of requirements that he would reasonably expect. It sets out the matter clearly. It should be read in conjunction not only with other legislation that I have mentioned, such as the Data Protection Act 1998 and the Privacy in Electronic Communications Regulations 2003, but with clause 210, which provides for the Information Commissioner to audit the security, integrity and destruction of retained data, and the codes of practice to which I referred earlier. The provisions in the communications data draft code of practice go into more detail about the security arrangements.
We had a discussion some days ago about the existence of adequate criminal legislation. The Bill has a number of provisions that relate to those who hold data, and we discussed whether existing legislation could cover those who come into possession of the data unlawfully. I say to the hon. Gentleman that I will take the matter away and consider it, and come up with a proper considered response to his query.
Question put and agreed to.
Clause 81 accordingly ordered to stand part of the Bill.
Clauses 82 and 83 ordered to stand part of the Bill.
Clause 84
Enforcement of notices and certain other requirements and restrictions
Keir Starmer
I beg to move amendment 225, in clause 84, page 65, line 20, after “not”, insert “, without reasonable excuse,”.
There are two points to make here. One is to state the principle that reasonable excuse defences are needed to protect those who are exposed in wrongdoing. We had that debate last week and I listened carefully to the response given. The practical reason is the inconsistencies may be intentional, or they may be unintentional. Clause 73(1), under which unlawful disclosure is made an offence under part 3, has a “without reasonable excuse” provision. Clause 84, which is in part 4, does not. There may be a very good reason for that, but it escapes me at the moment. That is either a point that the Solicitor General can deal with now, or I am happy for him to deal with it later on. It may be just one of those things when you draft a long, complicated Bill, but there is an inconsistency of approach here, because reasonable excuse is sometimes written in and other times not, for no apparent reason.
The Solicitor General
The hon. and learned Gentleman askes what the policy objective is of not having such a defence. The clear policy underlining this is the Government’s policy of not revealing the existence of data retention notices. They are kept secret because revealing their existence could damage national security and hamper the prevention and detection of crimes, because criminals may change how they communicate in order to use a provider that is not subject to data retention requirements. Clause 84 places a duty on providers not to reveal the existence of notices.
Keir Starmer
Just to be clear, I do not need to be persuaded about the policy objective of a clause that keeps a retention notice safe. It is the policy objective of not having a “reasonable excuse” defence to the provision, which operates as an exclusion to the prohibition, of which I need to be persuaded. I do not need persuading about the prohibition for safety.
The Solicitor General
I was coming to that. We are talking about a duty here; the earlier clause the hon. and learned Gentleman referred to is an offence. That will, I think, explain the importantly different context.
To deal with the question of “reasonable excuse”, the problem is that once the information is out in the public domain, it cannot be withdrawn—whether that information has been introduced with good or bad intentions does not matter. It cannot be right for the Bill to allow a person to release sensitive information in that way and then subsequently rely on a “reasonable excuse”.
May I deal with clause 84(4), which is relevant to this provision? It provides an exemption where the Secretary of State has given permission for the existence of the notice to be revealed. The Government intend that such permission would be given, for example, where a provider wishes to discuss the existence of their retention notice with another provider subject to similar requirements. Should the operator wish to reveal the existence of the notice, they should discuss the matter with the Secretary of State, and in such circumstances permission is likely to be given. There will be those sort of scenarios, as I am sure the hon. and learned Gentleman will understand, and they will help improve the operational model.
My concern about using the “reasonable excuse” provision in the context of a duty would be that it would undermine the important policy objective that I have set out. For that reason I would urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I will withdraw the amendment. As to the difference between a duty and an offence, I understand that in principle, but I am pretty convinced that elsewhere in the Bill a breach of the duty becomes an offence, as otherwise it is an unenforceable provision, so I am not sure it is a distinction that withstands scrutiny. That being said, I am not going to press this to a vote. It would be helpful and reassuring if the Solicitor General would agree to set out the route by which a whistleblower brings this to attention. I think we have already agreed in general terms and it may come within the umbrella of the undertaking that has been given; if it does, all well and good. That would reassure those that have concerns about exposing wrongdoing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 223, in clause 84, page 65, line 21, after “person”, insert
“except the Investigatory Powers Commissioner or a Judicial Commissioner”.
The Chair
With this it will be convenient to discuss amendment 224, in clause 84, page 65, line 26, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.
Keir Starmer
These amendments were consistent with earlier amendments that have now been withdrawn, the purpose of which was to put the decision-making power in the hands of the Investigatory Powers Commissioner or the judicial commissioner. The other amendments having been withdrawn, I will not press these to a vote; they do not make sense within the unamended Bill as it now stands.
The Solicitor General
We have already discussed the importance of protecting the identities of those companies subject to data retention notices, but there are circumstances where a telecommunications operator should be able to disclose the existence of a retention notice. Clause 84 allows the Secretary of State to give them permission to do so. The amendment would ensure that a telecommunications operator could disclose the existence or content of a retention notice to the IPC without the need for permission to be given. I would say the proposal is unnecessary, because it is absolutely the Government’s intention to give telecommunications operators permission to disclose the existence and content of the retention notice to both the relevant oversight bodies—the IPC and the Information Commissioner—at the point at which a notice is given. In any event, clause 203 as drafted would permit the telecommunications operator to disclose a retention notice to the IPC in relation to any of his functions.
Amendment 224 would mean that the IPC, not the Secretary of State, would be granting permission for a telecoms operator to disclose the existence of the notice. In practice the Secretary of State would consider, at the point that a retention notice was issued, to whom the telecommunications operator could disclose the existence of a notice. It would not make any sense for this issue to be considered separately by the commissioner following the issue of a notice by the Secretary of State.
Further requests by a telecommunications operator to disclose a retention notice are likely to cover administrative matters, such as disclosure to a new systems supplier. Such matters should appropriately be considered by the Secretary of State. I think that explanation not only justifies opposition to the amendments, which I know are being withdrawn, but supports clause 84.
Keir Starmer
I have nothing further to add, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 226, in clause 84, page 66, line 15, at end insert—
“(2B) No notice shall be served under subsection (1) where the relevant telecommunications operator outside the United Kingdom.
(a) is already subject to a comparable retention requirement in the country or territory where it is established, for the provision of services, or
(b) where there is no comparable retention requirement under its domestic law, any extraterritorial requirement is limited to the making of preservation requests to the telecommunications operator.”
Committee members will understand why this amendment has been tabled. It reflects the concerns of those who will be caught by these provisions in cases where a comparable retention requirement exists in the country in which they are working. The provisions in this part of the Bill are unnecessary in relation to them. That is the amendment’s intention and purpose.
Mr Hayes
I think we can deal with this briefly. I entirely agree with the hon. and learned Gentleman: where it was neither necessary nor proportionate to attempt to retain data in another place, we would not do so, so that is very straightforward. All data retention notices that are given to telecommunications companies, whether here or abroad, must pass the test of necessity and proportionality. Where they did not do so, it simply would not happen, because it would not be necessary, so for that purpose the amendment is unnecessary.
The second part of the amendment would remove the ability to serve data retention notices on telecommunications operators in countries that do not have a comparable data retention regime. Of course, the fact that they do not have a comparable data retention regime does not necessarily mean that there are no data to obtain, and I think that this part of the hon. and learned Gentleman’s proposal would add rigidity where flexibility is needed. I accept that there are not always comparable systems, but that does not mean that no system of any kind prevails. Again, with the caveat of proportionality and the proven need established, I think it would be unhelpful to limit our capacity to take action as necessary in the way that he suggests. The same could be said of the third element of his proposal, which is about the preservation of data. When there are no data to preserve, this does not really apply, but when there are, we need at least the capacity, born of the flexibilities provided by the Bill, to take action as is necessary and reasonable.
Keir Starmer
I am grateful to the Minister. I am sure that those who have the primary concern here will take some comfort from what is said about necessity and proportionality but, in practice, where there are comparable retention requirements in the country, it will rarely, if ever, be necessary or proportionate. Obviously, that will have to be determined case by case, or authorisation by authorisation, but I note what he has said on the record. I therefore beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 84 ordered to stand part of the Bill.
Clause 85 ordered to stand part of the Bill.
Clause 86
Extra-territorial application of Part 4
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
The clause relates to extraterritorial effect and the SNP’s opposition is for the same reasons as outlined in relation to clause 76.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 381, in clause 88, page 66, line 38, leave out “information” and insert “specified data”.
This amendment seeks to more clearly outline what material may be obtained by hacking.
The Chair
With this it will be convenient to discuss amendment 382, in clause 88, page 67, line 40, leave out from “6” to end of line 43.
This amendment requires that an examination warrant is required for the examination of all data, removing the exception of equipment data and the broad category of ‘not private information’ which is collected under bulk warrants.
Keir Starmer
We need to spend some time on this clause, because it is the one that deals with equipment interference under part 5. There are real concerns about the breadth of the clause, which provides for two kinds of warrant: a targeted equipment interference warrant and a targeted examination warrant. Those warrants allow interference with equipment, such as remote—not always remote—interference with equipment with your, my and many other people’s equipment, Ms Dorries, to secure any of the purposes under subsection (2).
The warrants allow others to interfere with our communications data equipment to obtain “communications”, “equipment data” or, to draw attention to subsection (2)(c), “any other information”—to hack into or interfere with equipment to obtain unlimited “any other information”. That is why the amendment seeks to limit subsection (2)(c) to “any other specified data”. In other words, the clause as drafted will in effect allow interference for pretty well any purpose, as long as it is to obtain information from your computer, my computer, my laptop, your laptop and so on. The provisions are very wide.
The equipment interference in subsection (4) includes interfering by
“monitoring, observing or listening to a person’s communications or other activities”
or
“recording anything which is monitored, observed or listened to.”
Let us pause there and reflect on how wide the provision is. In terms of invasion of privacy, that will put an incredibly powerful provision in the hands of those who will operate these measures.
Mr Hayes
I intervene merely because I know that the hon. and learned Gentleman is as much a stickler for accuracy as I am and is perhaps even less prone to hyperbole than me. He will therefore want the Committee to consider the draft code of practice, particularly where it deals with exactly the matters to which he is referring. I will discuss this at greater length than an intervention will allow in a moment, but he will see in the draft code of practice a comprehensive list of qualifications to the breadth that he is outlining.
Keir Starmer
I am grateful for that intervention. I have been referring throughout to the code of practice and its role. Consistent with the in-principle argument I have been making, the Bill and the code serve different functions. I understand the argument that a code is one way not only to give more detail to the provisions in the Bill, but to future-proof it. In other words, a code allows an approach that can be changed without amending the legislation.
As a matter of principle, though, I argue that where limits are to be put on the exercise of the power, and thus important safeguards are in place, they should be in the Bill. What should be resisted is a wide and generalised power in the Bill that finds constraint and limitation only in the code of practice. The extent of these powers should be set out in the Bill. The code of practice is the place for more detailed provision—provision that may change over time—and other obvious future-proofing techniques; it is not the right place for the limitations themselves.
Moving on, consistent with the earlier clauses on warrants, subsection (5) allows conduct in addition to the interference itself in order to do what is expressly authorised or required and any conduct that facilitates or gives effect to the warrant. I now want to take a bit of time on subsection (6).
Keir Starmer
I am grateful for that intervention. It is helpful to have such matters on the record so that others can follow how the clauses are intended to operate.
Returning to subsection (6), one of the welcome measures in the Bill is that clause 3(4) makes it clear that, when a communication is intercepted, interception includes the communication at
“any time when the communication is stored in or by the system”.
I know that sounds very technical, but it became a real issue in a number of cases in which the question was whether a voicemail that was accessed once it was on a voicemail machine was in the course of its transmission. If the answer to that was no, there was nothing unlawful about retrieving it, listening to it and publishing it. A lot of time and energy went into the interpretation of the relevant clause. One of the advantages of the Bill is that clause 3 spells out in no uncertain terms that communications are protected if they are intercepted in the course of transmission, including if stored either before or after transmission. That protects any communication, sent to us or anybody else, which is either listened to at the time or not, but is later stored either in a voicemail, on a computer or in any way. We all store communications all the time; it is very rare that they exist only in real time. That is a step in the right direction.
We then get to clause 88(6):
“A targeted equipment interference warrant may not, by virtue of subsection (3), authorise or require a person to engage in conduct, in relation to a communication other than a stored communication”.
It protects the communication and excludes its content from this part—I think that is the idea—but only half does the job and leaves quite a gap, in my view. We get back to the same problem. If there is equipment interference to obtain a communication, that communication would be protected from one of these warrants as long as it is in the course of its transmission. If it has arrived, it is not. If I am wrong about this I will stand corrected, but all of the good that was done by amending clause 3 will be undone by clause 88; the same ends could be achieved by using an equipment interference warrant, namely obtaining by interference a communication that is in the course of its transmission, either before or after it is sent.
Mr Hayes
I am grateful to the hon. and learned Gentleman for his humility in suggesting that he would stand corrected; I now stand to correct him. An equipment interference warrant would not allow interception of real-time information of the kind that he describes. He is right that to intercept that kind of information would require a different process, as we discussed earlier in our considerations. If further explanatory notes need to be made available to provide greater clarity about that I am more than happy to do so. I will talk more when I respond, before you rightly chide me for going on for too long, Ms Dorries.
Keir Starmer
I am grateful to the Minister. If he could point to the provision that makes good the submission he has just made, then that will deal with this particular point. Just to be clear, subsection (6) is intended to ring-fence and exclude from one of these warrants communications the interception of which would
“constitute an offence under section 2(1)”,
but only in relation to communications in the course of their transmission in the real sense of the term, not including those that are “stored”. I put on the record—if this is capable of being answered, so be it—that “stored” in subsection (6) has the same meaning as in clause 3, which is intended to include stored communications within the prohibition. I will not take it any further; the Minister has my point, which is that one would expect subsection (6) to protect the same content that is expressly protected by clause 3(4), but it does not—unless he or somebody else can point to another provision that adds to subsection (6), though that would be an odd way of doing it.
I will move on. Subsection (9) defines targeted examination warrants. This is important because subsections (1) to (8) deal with targeted equipment interference warrants—warrants issued in a targeted way; the targeted examination warrant deals with examining material obtained by way of a bulk warrant. It therefore serves a different purpose. Subsection (9) is an extremely wide provision:
“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of protected material…in breach of the prohibition in section 170(4)”.
To understand that, we need to turn to section 170(4), which raises questions that relate to an argument I made earlier on another, not dissimilar, provision. It states:
“The prohibition…is that the protected material may not…be selected for examination if (a) any criteria used for the selection of the material for examination are referable to an individual known to be in the British Islands at that time, and (b) the purpose of using those criteria is to identify protected material consisting of communications sent by, or intended for, that individual or private information relating to that individual.”
That is intended to give protection to individuals known to be in the British islands, by placing limits on the examination of their material: in relation to their material or their communications one needs a targeted examination warrant to get around the prohibition in clause 170(4). The point I make here is similar to the point that I made before: this is temporal. Whether a person is in the British islands or not depends on where they are physically. I am protected so long as I am in the British islands, but I fall out of protection—as would everybody else—the moment I leave them, whether I am leaving for a day, a week, a month or a year. That is a real cause for concern, as is the wide definition of protected material that immediately follows in clause 88(9); amendment 382 would limit the extent of that definition by stopping the clause after the words “Part 6”, which are on page 67, line 40, of the draft Bill.
In conclusion, this is a very wide-ranging clause, and it contains insufficient safeguards—if there are safeguards, they should be in the Bill. There are questions on subsections (6) in (9), taken in conjunction with clause 170(4), that the Minister will have to deal with.
Joanna Cherry
I rise to support the hon. and learned Gentleman in his submissions on these two amendments. As we have just reached part 5, I want to take the opportunity to make some general comments on it. Powers to conduct equipment interference—or “hack”, which is the more generally used term—are new; they do not exist in any previous legislation. They therefore require significant scrutiny, by the Committee and by parliamentarians generally, before they are added to the statute book. By its very nature, hacking is an extremely intrusive power, because it grants the authority to see all past and future information and activity on a computer or other device. Beyond the implications for privacy, the potential ramifications for the whole country’s cyber-security and for fair trials mean that hacking should be used only as a tool of last resort. The SNP’s position is that stronger protections must be added to the Bill.
Mr Hayes
As the shadow Minister said, part 5 of the Bill is very important. It deals with equipment interference. He is right to say that equipment interference is, by its nature, quite a radical technique—I will explain that in a few moments—but of course it is for a purpose. It fulfils a proper function and allows those missioned to keep us safe to do so by means of the exercise of that power.
Let me deal with the hon. and learned Lady first. I thought that her contribution—I say this kindly because, despite all of my instincts, I cannot help liking her—[Interruption.] Someone said “saintly instincts”. I would not go as far as to say “saintly”; I would say “wholesome instincts”. I thought that her speech exemplified the curious cocktail at the heart of Scottish nationalism: a mix of paranoia and assertiveness.
I have two things to say in response to her. First, these powers are not new; they already exist in the Intelligence Services Act 1994 and the Police Act 1997. Secondly, the exercise of those existing powers has been scrutinised. They are particularly used by GCHQ.
The Chair
Order. There is a Division in the House. We will suspend for 15 minutes, or 25 if there are two. Be back as quickly as you can if there are three.
Mr Hayes
Having characterised the Scottish National party in a vivid and, in some people’s view, slightly too generous way, I will move on to the specifics of what the hon. and learned Lady said. She is right that there need to be important safeguards in respect of equipment interference. I do not think that there is any difference between us on that. She is right that GCHQ’s use of equipment interference powers—although they are more widely available, it is GCHQ that uses them particularly—are central to its purpose and of course must be lawful. She will be pleased to know that the Investigatory Powers Tribunal found them to be just that when it looked at the matter as recently as February of this year. Of course it is right, given the radical character of those powers, that we put in place all the right checks and balances. One might say that transparency and stronger safeguards are part of what the Bill is defined by.
It is important to emphasise in that context the draft codes of practice, which I drew attention to in a brief intervention on the hon. and learned Member for Holborn and St Pancras. They are clear in two respects. I draw attention first, in general terms, to part 8 of the draft code of practice on equipment interference, which deals with handling information, general safeguards and so on, and secondly to the specific areas covered in part 4.10, which lists an extensive series of requirements for the information that a targeted equipment interference warrant should contain. I will not go through them exhaustively, Ms Dorries, because that would please neither you nor other Committee members. Suffice it to say that such a warrant should contain details of the purpose and background of the application, be descriptive and clearly identify individuals where that can be done. Those requirements also necessitate an explanation of why equipment interference is regarded as essential and refer to conduct in respect of the exercise of such powers, collateral intrusion, and so on. They are pertinent to the consideration of the clause.
There is always, as I predicted there would be in this case, a debate in Committee about what is put in the Bill and what is put in the supporting material. As you will be familiar with, Ms Dorries, having been involved in all kinds of Committees over time, Oppositions usually want more in Bills and Governments usually want more flexibility. Perhaps that is the nature of the tension between government and opposition. I have no doubt that were the Labour party ever to return to Government, the roles would be reversed; we would be the ones saying, “More in the Bill,” and that Labour Government would probably be arguing for more flexibility. The truth lies somewhere between the two: of course it is important to ensure that there is sufficient in the Bill both to ensure straightforward legal interpretation and to cement the safeguards and protections for which the hon. and learned Gentleman rightly calls, but in achieving those ends one must always be careful that specificity does not metamorphose into rigidity. Where we are dealing with highly dynamic circumstances, changing technology and, therefore, changing needs on the part of the agencies and others, rigidity is a particular worry.
In the Bill as a whole, and in this part of the Bill, we have tried to provide sufficient detail to provide transparency, navigability and a degree of resilience to legal challenge while simultaneously providing the flexibility that is necessary in the changing landscape. That is why the codes of practice matter so much, particularly in respect of this clause and these amendments, and it is why the codes of practice have changed in the light of the consideration of the Joint Committee of both Houses, and others. It is also why I predict—I put it no less strongly than that—that the codes of practice will change again as a result of the commentary that we have already enjoyed in Committee and will continue to provide over the coming days.
The need for equipment interference could not be more significant, and I will explain what it comprises. Equipment interference is a set of techniques used to obtain a variety of data from equipment that includes traditional computers, computer-like devices—such as tablets, smartphones, cables, wires—and static storage devices. Interference can be carried out remotely or by physically interacting with the equipment. Although equipment interference is increasingly important for the security, intelligence and law enforcement agencies, it is not new. Law enforcement agencies have been conducting equipment interference for many years, and I described the legislative basis for that in response to the hon. and learned Member for Edinburgh South West. It is probably fair to say that equipment interference is likely to become still more important as a result of the effect that changes in technology are having on other capabilities. I do not want to overstate this, but encryption, for example, is likely to make equipment interference more significant over time.
I will amplify the clarity with which I delivered my advice to the hon. and learned Member for Holborn and St Pancras. Warrants cannot be issued without specifying what information is being sought, and on that basis it is hard to see why clause 88 should be amended. Chapter 4 of the code of practice states:
“An application for a targeted equipment interference warrant should contain… A general description of any communications, equipment data or other information that is to be (or may be) obtained”.
Together, the provisions provide the issuing authority with the information it needs to assess an application and with the power to constrain the authorised interference as it sees fit on a case-by-case basis. Amendment 382 would extend the requirement to obtain a targeted examination warrant to circumstances where the agencies need to select for examination the equipment data and non-private information of an individual who is known to be in the British islands. I tend to agree with the argument made by the hon. Member for City of Chester in an earlier sitting of the Committee that it is right that there are particular provisions for UK citizens in what we do in this Bill, rather than with the argument made by the hon. and learned Member for Edinburgh South West.
Keir Starmer
I just want to clarify my concern, because I think the Minister just said, “UK citizens”. I understand that the distinction is made between UK citizens and others. My concern about this provision is that, whether someone is a citizen or not, if they are physically outside of the British Isles they fall outside the protection. That has been my driving concern, or one of my driving concerns, here. There may be a good reason for this and there may be a longer explanation for it, but I was surprised to see in the Bill that the protection was not to British citizens or to some other description of people with the right of residence in this country, but in fact depends on whether someone is physically in the country or not. On my understanding, I lose the protection that is provided by this Bill in this and other provisions if I go to France for a short period of time.
Mr Hayes
To be fair to the hon. and learned Gentleman, the Bill refers to people within “the British Islands”, so he is right, and there are very good reasons why enhanced safeguards should apply for the content of people in the UK. As he implied, we explored these issues in an earlier part of the debate.
I will conclude, but I want to do so on the basis of clarifying this matter, too. The subsection that the hon. and learned Gentleman described earlier makes it clear that when a warrant for equipment interference is used to examine a phone, the police can look at all data on the phone, including text messages, but not in real time. I wonder whether there has been a misunderstanding or misapprehension about this issue—either a mis- understanding about the meaning or misapprehension about the purpose.
I repeat this solely for the sake of convincing the hon. and learned Gentleman and others that we are doing the right thing. These are important powers with stronger safeguards with absolute determination to be clear about legal purpose; they can only be used when necessary and can only be used lawfully. They are fundamentally not new but a confirmation of what is already vital to our national interest and to the common good.
Keir Starmer
I am grateful to the Minister for taking us through in some detail how the clause is intended to work with the code of practice. I reiterate my point that the essential safeguards should be in the Bill. Amendments 381 and 382 would not delete the provisions in clause 88; they would tighten the provisions in clause 88, and I intend to push both of them to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 384, in clause 89, page 68, line 13, leave out from “information” to end of line 15.
This amendment acknowledges that “data” relating to the fact of a communication or the existence of information has meaning and must not be exempt from privacy protections afforded to other categories of data.
This amendment deletes the words
“or from any data relating to that fact”.
It is important because an equipment interference warrant can permit interference with equipment data, as in clause 88(2)(b). As we have seen, clause 88(9) makes provision for protected material, the definition of which includes equipment data. Over the page, clause 89 deals with the meaning of “equipment data”:
“(a) systems data;
(b) data which falls within subsection (2).”
Subsection (2), broadly speaking, refers to systems data as identifying data that are included in, attached to or associated with a communication but that can be separated from it and that, if separated,
“would not reveal anything of what might reasonably be considered to be the meaning (if any) of the communication”.
That is a logical way of approaching it—data linked to a communication that can be separated from it, but if separated, they would not reveal the meaning of the communication. Thus, it does not undermine the special protection given to the communication.
Then the final part of clause 89(2), paragraph (c), says
“disregarding any meaning arising from the fact of the communication”.
As has been said today, the fact of the communication, in many respects, can be as revealing as the content. However, the provision goes on to say
“or from any data relating to that fact”,
which broadens even further the exclusion from protection intended for communications.
In that way, the clause undermines the very protection being given to communications, so this short amendment would omit the words that I have indicated, in order to limit the exclusion from protection for the communication.
Joanna Cherry
May I add my supportive comments? This is a joint amendment from the Labour party and the Scottish National party.
Joanna Cherry
I rise to add my support to amendment 384 on behalf of the Scottish National party. Historically, communications data were considered much less revealing than the content of the communication, and consequently the protections offered to communications data under RIPA were weaker than those existing in the interception regime. However, as communications have become increasingly digital, the data generated are much more revealing and copious than before, allowing the state to put together a complete and rich picture of what a person does and thinks, who they do it with, when they do it and where they do it.
As the Bill stands, clause 88(9) would allow for the examination of potentially vast amounts of data on people in Britain obtained under bulk equipment interference warrants, as vague categories of “data” in 88(9)(a) and (b) are asserted to have no meaning. Data relating to the fact of a communication or the existence of information do have meaning and must not be exempt from the privacy protections afforded to other categories of data.
I urge the Committee to ensure that the Bill does not treat data relating to the fact of a communication or the existence of information relating to that fact as unimportant. In fact, there is extraordinarily high value to such material, precisely because it is highly revealing. It therefore demands equal protection.
Mr Hayes
All these disruptions and delays are adding interest and variety to our affairs. There is a straightforward argument for why the amendment is unnecessary, which I will make. If that is insufficient to persuade the Committee, I will add further thoughts.
The straightforward reason why the amendment is unnecessary is that it would undermine the principle that the most robust privacy protections should apply to the most intrusive kinds of data. I simply do not agree with the hon. and learned Lady that, for example, systems data—the highly technical data that will be separated out as a result of the endeavours in this part of the Bill—are better excluded from those extra protections. The unintended consequence of the amendment—at least, I hope it is unintended—is that it would lead to disproportionate access requirements for less intrusive data. That would be unhelpful and could, through confusion, hamper the work of the services.
Keir Starmer
I want to be clear as to how clause 89 operates, because subsection (2) suggests it is an attempt to identify data associated with a communication that can be separated from the communication, but which, if separated, would not touch on the meaning of the communication, thereby protecting it. That is all good. That is a safeguard, which is supported and welcome, but after the comma, as I read it, disregarded from that protection is everything that follows on. At the moment, I do not follow how the amendment removes protection, because the last bit of clause 89(2)(c) after the comma disregards from the protection and thus leaves unprotected from the scheme of clause 89
“the fact of the communication or the existence of the item of information or from any data relating to that fact.”
If I am wrong about that, there is a problem with the amendment, but I understand that part of clause 89(2)(c) to detract from the protection that the subsection is otherwise intending to put in place.
Mr Hayes
Let me see if I can deal with that question specifically. Equipment data include identifying data. Most communications and items of information will contain information that identifies individuals, apparatus, systems and services, or events and sometimes the location of those individuals or events. Those data are operationally critical to the agencies, as the hon. and learned Gentleman understands. In most cases that information will form part of the systems data, but there will be cases where it does not.
The work that has been done to separate out and define data has been carefully designed to categorise logically the range of data generated by modern communications. Identifying data are operationally critical. It is important to be able to classify data correctly and coherently throughout the Bill. My assertion, therefore, drawing on the hon. and learned Gentleman’s question, is that the amendment would inhibit though not prevent that by making the distinction less clear.
We can talk at length if necessary, although I suspect that at this juncture it is not necessary, about inferred meaning and its importance and relevance here. Misunderstanding frequently arises on inference, but I do not think that that is critical to this particular part of our discussion. My case is that the work we have done in better categorising the difference between the kinds of data assists the application of this part of the Bill, and assists the agencies accordingly. As I said, the amendment, perversely, would afford to those bits of technical data, for example, the same protection that is deliberately granted to more sensitive data under the Bill.
I do not like to do this on every amendment, or we would drown in a sea of paper, but as I write to the Committee regularly, if it would be helpful to cement that point in my next letter, I will happily do so. I am, however, confident that what I have said to the Committee is an accurate reflection of the work that I have described and of the content of the Bill.
Keir Starmer
I am grateful to the Minister, first for spelling out in detail the intended operation of the clause and, secondly, for indicating his willingness to write on the matter. This is something that ought to be in the Bill. My clear reading is that the amendment would not ring-fence anything from examination; it would simply require a warrant under clause 88 if equipment data, having satisfied all the other provisions under subsection (2)(a) to (c), included anything where there was a meaning arising from fact communication and so on. I will therefore press the amendment to a vote.
Joanna Cherry
I have nothing to add in support.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 385, in clause 90, page 68, line 24, leave out paragraph (b)
This amendment, and others to Clause 90, refine the matters to which targeted equipment interference warrants may relate by removing vague and broad categories including “equipment interference for training purposes”.
The Chair
With this it will be convenient to discuss the following:
Amendment 386, in clause 90, page 68, line 33, leave out paragraph (f).
Amendment 387, in clause 90, page 68, line 35, leave out paragraph (g).
Amendment 388, in clause 90, page 68, line 38, leave out paragraph (h).
Amendment 456, in clause 90, page 68, line 44, leave out subsection (2)(b).
Amendment 391, in clause 90, page 69, line 1, leave out paragraph (d).
Amendment 392, in clause 90, page 69, line 3, leave out paragraph (e).
Amendment 265, in clause 101, page 78, leave out lines 21 to 27.
Amendment 272, in clause 101, page 79, leave out lines 3 to 7.
Amendment 273, in clause 101, page 79, leave out lines 8 to 12.
Amendment 274, in clause 101, page 79, leave out lines 13 to 18.
Amendment 457, in clause 101, page 79, leave out lines 31 to 36.
Amendment 279, in clause 101, page 80, leave out lines 3 to 7.
Amendment 280, in clause 101, page 80, leave out lines 8 to 12.
Keir Starmer
We move to a different topic within the same general subject matter of thematic warrants.
Clause 90(1) sets out that a
“targeted equipment interference warrant may relate to”
and thereafter follows a long list from paragraph (a) to paragraph (h). Paragraph (a) specifies
“equipment belonging to, used by or in the possession of a particular person or organisation”.
Paragraph (b) deals with groups or those
“who share a common purpose or who carry on…a particular activity”.
Paragraph (c) deals with equipment
“in the possession of more than one person or organisation, where the interference is for the purpose of a single investigation or operation”.
Paragraph (d) deals with
“equipment in a particular location”.
And on it goes. In other words, the clause allows a very broad range of matters to be included in what is intended to be a targeted equipment interference warrant.
The evidence from the independent reviewer, David Anderson, was, in essence, that clause 90, or its forerunner, was so wide that he thought it was difficult to suggest anything that could not be included in a thematic targeted interference warrant. That gives rise to the suggestion that, in truth, this is a disguised bulk power. It is called a targeted equipment interference warrant, but it is so wide as to be tantamount to a bulk power. In so far as this sort of interference has been carried out in the past, it has been carried out under provisions of this sort rather than any bulk provision. It is an extremely wide and permissive thematic warrant that allows interference with equipment in a very wide range of circumstances, which of course includes monitoring, observing, listening to and so on. It is far too wide.
Amendments 385 and 386 are intended to cut out part of the wide thematic approach in subsection (1). Subsection (2) deals with a targeted examination warrant, and again there is a wide range of matters that the warrant may relate to, including
“a particular person or organisation…a group of persons”
and so on. As far as subsection (2) is concerned, the examination warrant is to operate in conjunction with or following on from a bulk warrant, so subsection (2) indicates the matters to which such a targeted warrant may relate, notwithstanding the wide breadth of the bulk warrant.
The powers are far too wide and they need to be better specified. The amendments are intended to draw in and narrow the scope of the thematic warrants, because otherwise it is hard to resist David Anderson’s conclusion that it is hard to think what would not be included in one or other of the descriptions I have outlined.
Joanna Cherry
I want to add my voice in support of the hon. and learned Gentleman’s suspicions—sorry, submissions! We share suspicions about this clause. The clause unamended permits thematic, suspicion less warrants and these shade into general warrants. General warrants are anathema to the common law of England and Scotland and fall foul of international human rights law.
I am pleased that the hon. and learned Gentleman prayed in aid what David Anderson QC said about clause 90. If Members have read his supplementary written evidence to the Committee, they will have seen that at paragraph 5a he expressed grave concern about clause 90, describing it as “extremely broad” and continuing:
“The ISC noted this in relation to the EI power in February 2016…The Operational Case lodged with the Bill also acknowledged…that a targeted thematic EI”—
equipment interference—
“warrant may ‘cover a large geographical area or involve the collection of a large volume of data’. This matters, because as the Operational Case also acknowledged…the protections inherent in a thematic warrant are in some respects less than those inherent in a bulk warrant. The very broad clause 90 definition effectively imports an alternative means of performing bulk EI, with fewer safeguards. The Government’s explanation for this–that it will opt for a bulk warrant where extra safeguards are deemed necessary–may be argued to place excessive weight on the discretion of decision-makers.”
That concern—that it gives excessive discretion to decision makers—is one that the Scottish National party has as a thread running through the Bill. David Anderson goes on to say:
“If bulk EI warrants are judged necessary, then it should be possible to reduce the scope of clause 90 so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk.”
Even if the Minister does not consider the SNP’s and the Labour party’s concerns valid, what does he have to say about the lengthy passage that David Anderson has devoted to the matter in his supplementary written evidence?
Joanna Cherry
Will the Minister tell us the legal basis of the existing powers?
Mr Hayes
I have done so already, but I will repeat it for the sake of the record. The powers are contained in the Intelligence Services Act 1994 and the Police Act 1997. I am more than happy to provide more information to the hon. and learned Lady on that detail, should she want me to do so.
Joanna Cherry
I am looking at the 1994 Act and it seems to me that it contains broad and vague enabling powers, which bear no resemblance to the powers in the Bill. Can the Minister contradict that?
Mr Hayes
One of the stated purposes of the Bill is to bring together those powers—to cement them and to put in place extra clarification and further safeguards. I have argued throughout that the essence of the Bill is delivering clarity and certainty. I would accept the hon. and learned Lady’s point if she was arguing that, at the moment, the agencies draw on a range of legal bases for what they do, for that is a simple statement of fact. We are all engaged in the business of perfecting the Bill, because we know it is right that these powers are contained in one place, creating greater transparency and greater navigability, and making legislation more comprehensible and more resistant to challenge. That is at the heart of our mission.
I said I would talk about breadth. The breadth of the circumstances in which equipment interference could be used reflects the fact that, at the time of making an application for a warrant, the information initially known about a subject of interest may vary considerably. Last week, we spoke about the kind of case in which there may be an unfolding series of events, such as a kidnapping, where a limited amount might be known at the outset when a warrant is applied for. The warrant’s purpose will be to gather sufficient information as to build up a picture of a network of people involved in a gang or an organised crime. That is very common and I intend to offer some worked examples in a number of areas.
Identifying members of such a gang can often come from interception arising from a thematic warrant. That might apply to interception, but frankly it might also apply to equipment interference where that is a more appropriate and more effective means of finding the information. Another example may be a group of people involved in child sexual exploitation. Frequently, partial information will allow for further exploration of a network of people who are communicating over a wide area, and who are careful about how they communicate, mindful of the activity that they are involved in. They will not be easy to discover or find, as they will very often disguise their identity. For that reason, it may be necessary to start by looking at sites commonly used to share indecent images of children and from there uncover information that leads, through the use of equipment interference, to those who are driving that unhappy practice. Those examples are not merely matters of theory; they are matters of fact. I know that in cases of kidnapping and in cases of child sexual exploitation, those techniques have been used and continue to be used.
Keir Starmer
I understand the point the Minister is making and the need for these powers to be practical and effective in real time. He says that they are not theoretical but real, and I absolutely accept that, but David Anderson is someone who will have appreciated that more than many others. He has been working in this field and dealing with those issues for many years. He is hardly likely to make the mistake of theorising about something that he knows about in great detail in the practical examination, so is he just plain wrong when he raises this concern? He has raised it not just once, but on a number of occasions, in detail, and he knows how these things work.
Mr Hayes
I will return to that point because it is important and fair, and I will return to the Anderson critique in a moment, but before I do so, I want to be clear about the second thing that I said I would speak about—speed.
The kind of cases that I have outlined can move rapidly. The information that becomes available from the kind of initial inquiries that I have described, when the character or names of individual actors may not be known but will become known through these techniques, may require law enforcement agencies to act very quickly to avert further serious crime. Owing to the need for speed, it is vital that those missioned to protect us are able to exercise all the powers when they need to, with confidence and lawfully. The Anderson critique is why the codes of practice limit specifically how thematic warrants can be used. I draw the Committee’s attention to page 25 of the draft code of practice, which deals with such warrants and defines again, in some detail, exactly how they should be as specific as possible, given the breadth and speed requirements that I have set out.
I hear what is said about the David Anderson criticism. I think that we have gone further in being specific in the code of practice than we might have been expected to by our critics, but, rather as I said in relation to our consideration of an earlier group of amendments on warranting, I do not want to inhibit what is currently done; I do not want the Bill to leave the agencies and law enforcement with fewer powers; I do not want to leave them emasculated as a result of our consideration. It is right that we should have safeguards, definition, constraints and, where necessary, specificity, but these powers are vital to protect us from those who want to exploit our children and do us harm. Criminals are increasingly adaptable and sophisticated, rather like terrorists. We must outmatch them at every turn and I believe that those powers are vital for us to be able to do so. So I am unapologetic about making the case for them to the Committee and to Parliament.
Keir Starmer
I am grateful to the Minister for setting out his case in that way. To be clear, particularly in relation to his last point, I do not think that anyone is suggesting that those powers should not be available. The discussion is about whether they are rightly described as thematic warrants or whether they are, in truth, bulk warrants, which operate in different ways and have different safeguards, procedures and processes to go through. I do not want our challenging and probing to be portrayed as somehow to undermine the work that has to be done by law enforcement and others in real time, often in difficult circumstances.
That said, this is an important issue. I have listened to what has been said and I want to preserve the position. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 389, in clause 90, page 68, line 40, at end insert—
“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”
The Chair
With this it will be convenient to discuss the following:
Amendment 458, in clause 90, page 69, line 4, at end insert—
“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”
Amendment 266, in clause 101, page 78, line 18, leave out
“or a description of the person or organisation”
and insert
“or another identifier of the person or organisation”.
Amendment 474, in clause 101, page 78, line 27, leave out
“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”
and insert
“or another identifier of, each person or organisation”.
Amendment 473, in clause 101, page 78, line 28, at beginning insert “The name and”.
Amendment 268, in clause 101, page 78, line 31, leave out
“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”
and insert
“or another identifier of, each person or organisation”.
Amendment 269, in clause 101, page 78, line 36, leave out “description” and insert “specification”.
Amendment 270, in clause 101, page 78, line 38, at beginning insert “The name and”.
Amendment 271, in clause 101, page 78, line 40, leave out
“a description of as many of the locations as it is reasonably practicable to describe”
and insert “specification of each location”.
Amendment 276, in clause 101, page 79, line 29, leave out
“or a description of the person or organisation”
and insert
“or another identifier of the person or organisation”.
Amendment 278, in clause 101, page 79, line 40, leave out
“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”
and insert
“or another identifier of, each person or organisation”.
Keir Starmer
Ms Dorries, you have been indulgent in allowing me to trespass on the territory of some of these amendments in my general remarks on the clause. That probably applies to the Minister in reply as well. In those circumstances, it is not necessary for me to say any more about this group.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 90 ordered to stand part of the Bill.
Clause 91
Power to issue warrants to intelligence services: the Secretary of State
The Chair
With this it will be convenient to discuss amendments 396, 397, 398, 399, 400, 401, 402, 468, 469, 470, 403, 404, 407, 410, 411, 412, 413, 414, 283, 284, 285, 286, 287, 288, 289, 290, 291 and 292.
Keir Starmer
The clause deals with the power to issue warrants to the intelligence services. Subsections (1) and (2) deal with targeted equipment interference warrants, and subsections (3) and (4) deal with targeted examination warrants.
We have two concerns. First, although the test of necessity and proportionality is spelled out in the clause—in particular, in subsections (1)(a) and (b) and (3)(a) and (b)—the objective and aims to which the test of necessity and proportionality are attached, which are set out in subsection (5), are broad in the extreme. They are
“national security…preventing or detecting serious crime”
and our old friend,
“the economic well-being of the United Kingdom”.
We have concerns about the breadth of those powers. Examination warrants obviously allow the examination of the material as well as its interception, and they go with the bulk power.
The first batch of amendments is intended to put some rigour and independence into the scheme by replacing the Secretary of State with the judicial commissioner. We have been over this territory in depth once and in summary form at least once again. I am not sure anybody is going to benefit, and they certainly will not welcome, my going over it at great length again—[Hon. Members: “Hear, hear!”] The amendments would replace the Secretary of State with the judicial commissioner for the same reasons that I advanced a week ago today at a not dissimilar hour. I will not say more than that. In light of our discussion last week and the fact that I withdrew my amendments in relation to the scheme, I will not move these amendments; they are probing.
The Chair
Amendment not moved.
Ordered, That further consideration be now adjourned. —(Simon Kirby.)
Investigatory Powers Bill (Ninth sitting)
Thursday 21st April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
The Chair
Good morning and welcome to the Committee. We all have a good reason not to be in the Chamber this morning but I am sure you will all join me in wishing Her Majesty a happy 90th birthday.
Hon. Members
Hear, hear!
Clause 91
Power to issue warrants to intelligence services: the Secretary of State
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 405, in clause 91, page 70, line 8, after “crime”, insert
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
The Chair
With this it will be convenient to discuss the following:
Amendment 406, in clause 91, page 70, line 9, leave out paragraph (c).
Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).
Amendment 464, in clause 91, page 70, line 25, at end insert—
‘(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—
(a) to the offence as specified under subsection (5)(b), or
(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(b)”.
Joanna Cherry
The amendments, which were tabled by the Scottish National party and the Labour party, are part of the broad objective of altering clause 91 so that authorisation of warrants is carried out by judicial commissioners rather than the Secretary of State. There has already been quite lengthy argument about the general principle so I will not go into that in great detail. The amendments also deal with the grounds and circumstances in which warrants may be issued and attempt to tighten the safeguards in the clause.
Amendment 405 would amend the grounds on which warrants may be issued, adding at the end of subsection (5)(b) a reference to reasonable suspicion of serious crime taking place. That pertains to an argument I made in relation to part 2 of the Bill, which is that the grounds for issuance of a warrant should require reasonable suspicion. It will also be recalled that I argued that the economic wellbeing grounds should be removed from the Bill in relation to part 2, and I renew that argument in relation to this clause for the same reasons. There seems to be some tautology. As either the Joint Committee on the draft Bill or the Intelligence and Security Committee commented, it is difficult to see how
“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”
can really mean anything above and beyond the interests of national security. Amendment 406 would therefore remove subsection (5)(c).
Amendment 463 would remove subsection (6), while amendment 465 would include a requirement of proportionality and a technical assessment in the consideration that is given to the issuance of a warrant. Amendment 465 would require that less intrusive methods have been used or considered and a technical assessment of proportionality accounting for the risks of the conduct proposed. Those requirements would apply when applications from the intelligence service, the Chief of Defence Intelligence and law enforcement are considered. In order to consider whether a warrant is necessary and proportionate, not only the intrusion but the methods will need to be assessed. The amendment would require the judicial commissioner, supported by independent technical expertise, to assess the proportionality of the conduct proposed in targeted equipment interference applications.
There is good reason behind the amendment. Again, I hark back to some of the more general concerns that were expressed by myself and the hon. and learned Member for Holborn and St Pancras. When malware is deployed there is often a risk of contagion, at home as well as overseas. We have had a recent and dramatic demonstration of that: the Stuxnet virus was believed to be an American-Israeli cyber-weapon intended to hack a single Iranian uranium enrichment facility. What happened instead was that it infected Chevron, the energy giant, and many other companies, as well as Microsoft PCs around the world.
That is a good illustration of how hacks intended for what we might call “good purposes”—to protect the public—can have unintended consequences. I believe that the phrase used by those in the know is the risk of hacks spreading into the wild. Technical experts have explained to me that the risk of hacks spreading into the wild cannot be overstated. In fact, a professor of security engineering at Cambridge University, Ross Anderson, wrote to the Science and Technology Committee about this very issue, saying—he did not mince his words— that
“It is only a matter of time before interference with a safety-critical system kills someone”.
The amendment would address these serious issues by making sure that we do not take the potentially dangerous and counterproductive step of hacking where other less intrusive and safer methods have been used, and that a technical assessment of proportionality accounting for the risks of the hack being proposed is carried out in advance.
The practice of equipment interference leads to the stockpiling of software vulnerabilities, which in turn puts millions of users of software at risk, and those millions of users of software are our constituents, the citizens of the United Kingdom, people who use these sorts of devices day in and day out for all sorts of aspects of their personal and professional lives. These hacks, if not used only where strictly necessary, and if there is not a proper technical assessment in advance, risk opening up the equipment of ordinary members of the public to criminals and fraudsters rather than just the intelligence agencies. Underlying the amendment is the idea that it is vital that when deciding whether to grant a warrant, the judicial commissioner should understand and account for the proportionality of the proposed interference methods before authorising them.
There is also the risk that hacks can malfunction, with severe consequences for critical infrastructures and even international relations. Whatever one thinks of Edward Snowden’s revelations and the propriety of them, the fact is that he put a lot of material into the public domain and we would be remiss if we did not consider that. He has revealed that malfunctions of hacking by the National Security Agency in America were responsible for the outage of the entire internet in Syria in 2012, which may have caused simultaneous flight-tracking issues and led Government and opposition forces erroneously to blame each other for the incident. That sort of thing could be a danger to our forces.
I went to a fascinating briefing yesterday morning about photonics. Before I went into the briefing, I did not really know what photonics was, because I am not a scientist by background, but I went along because there is a lot of research into photonics development going on in Scotland, particularly at Heriot-Watt University, which is in my constituency. One of the fascinating things that I learned at this briefing on photonics from a speaker from BAE Systems was how photonics—in layperson’s terms, laser technology—can now “zap” on to the visor of fighter pilots the information they need vis-à-vis radar and the like, so that they do not have to look down at a screen when they are looking for a target. If hacking goes wrong, those sophisticated technologies, which are needed for the defence of this country, may themselves go wrong and that may lead to the deaths of innocent civilians, which we all, regardless of which side we took in the vote last December, want to avoid in any bombing in Syria.
There is a high degree of public interest in the proportionality of hacking methods, and the security of data and the safety of citizens both at home and abroad are very real issues. The debate surrounding the Apple against the FBI case in America centred on whether the methods required to hack one particular device were proportionate, given the security consequences for all owners of iPhones. In the United States, the decision in that case was rightly entrusted to an independent judge.
Amendment 465 is crucial because of the potential damage to computer security and the corresponding vulnerability to criminal elements that results from hacking, as well as the potential dangers for our forces fighting abroad and for civilians. The use of various hacking technologies poses clear risks to those they are used against and to the wider public, which requires the addition of a technical proportionality test. I hope the Government are prepared to consider the amendment seriously.
Keir Starmer (Holborn and St Pancras) (Lab)
It is a pleasure to continue to serve under your chairmanship, Mr Owen. I echo your sentiments in relation to Her Majesty the Queen. [Hon. Members: “Hear, hear!”]
I have little to add to the hon. and learned Lady’s comments in support of the amendments, other then to outline why they were tabled. Clause 91(1) sets out the power to issue warrants, and paragraphs (a) and (b) outline the familiar necessity and proportionality tests, which bite on the very wide provisions of subsection (5). The Secretary of State therefore has to consider whether issuing a warrant is necessary for one of those broad purposes—
“national security…preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.
That is obviously a broad necessity test, and proportionality is assessed by reference to the same grounds. The provision is over-broad, which matters because the double lock works only if a judicial commissioner has scrutiny of the Secretary of State’s decision. If the Secretary of State’s decision is so wide, the judicial commissioner’s scrutiny will be correspondingly wide. That matters particularly in relation to the targeted examination warrants, which will be used where a wider bulk power has been exercised in the first place. The amendments would tighten the necessity and proportionality tests, giving them real practicality and effect.
The Minister for Security (Mr John Hayes)
It is a pleasure to serve under your chairmanship once again, Mr Owen, particularly on the auspicious occasion of Her Majesty’s birthday. The Solicitor General and I are members of a diminishing group who still hold to the spirit, and perhaps even the actuality, of the divine right of kings.
Chivalry forbids me from paying but scant attention to the fact that the hon. and learned Member for Edinburgh South West spoke to amendments not in this group. I will not spend too much time responding to what she said, but I might be able to respond to her a little when we come to the next group.
Joanna Cherry
I realised that I had done that inadvertently, for which I apologise. I will not add insult to injury by repeating my submission when we get to the next group. I look forward to hearing what the Minister has to say.
The Chair
There will be a lot of that today, because we have addressed many of these issues in greater detail previously and we will be moving on. Hopefully that will help, rather than hinder, proceedings.
Mr Hayes
That brings me to the amendments before the Committee. It is important at the outset to re-emphasise that these powers are essential to protect against cyber-attacks by serious criminals and hostile states, and it is because GCHQ and others have such powers that our data and cyber-security is safer. That is not merely my estimation; it is the estimation of a number of major businesses that are susceptible to such attacks. In the past two years, the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including in some of the biggest businesses and organisations in this country.
It is sometimes said that although crime is declining, it is also changing—I think that has been said by right hon. and hon. Members in all parts of the House. That is certainly true, and the additional vulnerabilities as a result of technological change are something that Government must be conscious of and respond to with appropriate flexibility.
Joanna Cherry
The Minister is generous in giving way. I fully accept his good faith in saying that that is not the intention or purpose, but he cannot bind future Governments. In saying that it is not the intention or purpose, he clearly recognises that there is a weakness and that the provision could be interpreted in the way that has been suggested. That is our concern: we are putting on the statute book a measure that might be exploited by a less scrupulous Government.
Mr Hayes
I am happy to draw to the attention of any future Investigatory Powers Commissioner the fact that that is not the case and will not be under the Bill. Of course the hon. and learned Lady is right: whether this is a good or a bad thing I leave it to others to judge, but I cannot bind future Governments. However, we can certainly consider and reconsider ways in which the message can be reinforced during the passage of the Bill. I do not want to go too much further, but I think that the signal I am sending will have been seen by people on this Committee and elsewhere.
Keir Starmer
I am grateful to the Minister for putting that on the record, because there is concern. If the intention or purpose is not as has been suggested, will he give consideration to how that fact can find form in the Bill and be clear for all to see, just as the record will be clear?
Mr Hayes
Yes. It would absolutely not be permitted under the Bill. I do not want to go over it exhaustively, but that reinforces a series of pieces of legislation that deal with the question, many of which have been passed since the talisman case of the Shrewsbury 24, which has been raised in the House a number of times in different ways. However, I take the hon. and learned Gentleman’s point that there is a compelling case to be made for further consideration and assure him that we are engaged in that. I will not say more at this stage, but a signal has been broadcast to this Committee and elsewhere. My prejudices on these matters as a trade unionist are well known, although it is not my prejudices that shape legislation—heaven forbid.
To return to the amendment, it would restrict equipment interference warrants under clause 91 in circumstances
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
Again, I do not want to go over this exhaustively, but the problem with that is the character of investigations, which are by their nature dynamic; it is not always possible to anticipate the direction they might take or the material they might uncover. Not every individual involved in an investigation would themselves be suspected of committing a serious criminal offence, but their relationship with wider associates and potential facilitators of a crime might be crucial to identifying the extent of the organised crime gang and its international links and bringing the ringleaders to justice.
Restricting equipment interference warrants to where there is a serious criminal offence would be a significant reduction in the security and intelligence agencies’ current powers. I repeat: current powers. They are not new. We know how they are used and the effect of their use, but the amendment would restrict their ability to protect the national interest. Do not forget—not that you would, Mr Owen—the necessity and proportionality tests in the Bill that limit the circumstances in which the powers can be used, alongside the double lock.
My straightforward case is this: the powers are vital, to curtail them would damage our interests, and they are not here for any of the unintended consequences that people are understandably concerned about. I am prepared to look at how we can reinforce that. I invite the hon. and learned Lady to withdraw the amendment.
Joanna Cherry
Before I make my position on the amendments clear, it was remiss of me not to add the sincere good wishes of the Scottish National party to Her Majesty the Queen on the auspicious occasion of her 90th birthday.
When we looked at similar issues under part 2, we did not push the matter to a vote, and that is the course of action I wish to follow at this stage. I will withdraw the amendment now, but no doubt the whole issue of judicial warrantry will be revisited on the Floor of the House. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 465, in clause 91, page 70, line 18, leave out from “include” to end of line 19 and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity.”
The Chair
With this it will be convenient to discuss the following:
Amendment 415, in clause 93, page 71, line 35, leave out from “include” to end of line 36 and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity.”
Amendment 435, in clause 96, page 74, line 13, leave out
“whether what is sought to be achieved by the warrant could reasonably be achieved by other means”
and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity.”
Keir Starmer
One of the advantages of us all—me included—straying beyond the strict limits of the previous set of amendments is that there is nothing I can meaningfully or helpfully add on amendment 465, which would tighten the necessity and proportionality test for the reasons already articulated. I will say no more other than to indicate that I do not intend to press the amendment to a vote.
Mr Hayes
As the hon. and learned Gentleman says, we have covered the ground pretty exhaustively. Essentially, the amendments would change the language of the safeguard, requiring that alternatives must either be tried or be discounted because they were “bound to fail”. In the end, “bound to fail” is clearly too high a hurdle. Investigating agencies would have to waste time and resources, and interfere unnecessarily with people’s equipment trying out alternative ways to gather intelligence that they thought were likely to be successful and not bound to fail.
The amendments would require that in deciding to issue an order the Secretary of State or law enforcement chief must take into account the technical cyber risk assessment by the Investigatory Powers Commissioner. Given GCHQ’s track record of dealing with cyber-vulnerabilities of the kind that I described earlier—I will not go into further detail about that—and given that the code of practice requires that
“Any application for an equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk”,
and that
“The issuing authority should consider any such assessment when considering whether the proposed activity is proportionate”,
I believe that these amendments are unnecessary. Accordingly, I invite the hon. and leaned Gentleman to withdraw them.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I beg to move amendment 408, in clause 91, page 70, line 25, at end insert—
‘(10) Targeted equipment interference is only lawful if authorised under this Act.”
The amendment would require that targeted equipment interference cease to be conducted under the Intelligence Services Act 1994, the Police Act 1997 or indeed any other prior legislation, and instead be conducted under the provisions of the Bill. The Bill is a consolidated piece of legislation, and we tabled this amendment in the spirit of the Government’s laudable attempt to consolidate the legislation in this area. The amendment would ensure that equipment interference always benefits from the safeguards and oversight in the Bill. As we just set out, the Opposition parties want the safeguards to go further, but even if they remain as they are we would like them to apply to all targeted equipment interference. That would improve public accountability and clarify the state’s powers.
The Intelligence and Security Committee’s report on the draft Bill expressed concern about the fact that agencies conduct several forms of equipment interference that are not provided for in the Bill, so it is not just Opposition Members who are concerned. The ISC said that
“certain IT operations will require a different standard of authorisation…than Computer Network Exploitation and that similar activities undertaken by the Agencies will be authorised under different pieces of legislation.”
It concluded that, if that remains the case, the Bill will have failed to achieve transparency; operations will remain secret and thus not be subject to clear safeguards. It recommended that
“all IT operations are brought under the provisions of the new legislation…with the same authorisation process and the same safeguards.”
The amendment reflects the Intelligence and Security Committee’s recommendation that all types of equipment interference should be governed under one clear piece of legislation. I will be grateful if the Government take it on board in the spirit in which it is intended.
Mr Hayes
I will deal with this very briefly. The hon. and learned Lady is right that the amendment is neither invidious nor unhelpful; however, it is unnecessary because there is already a broad prohibition of unlawful interference with equipment in the Computer Misuse Act 1990. That means that any activity that fits within the definition of equipment interference provided in the Bill may constitute an offence unless it is lawfully authorised under part 6 of the Bill, where that authorisation is detailed, or under other relevant legislation.
On the hon. and learned Lady’s point about activities outside the United Kingdom—a prevailing theme of her concerns, understandably—the Bill sets out the circumstances in which it is mandatory for the agencies to obtain a warrant. That does not include cases in which the conduct takes place wholly overseas. The reality of operating outside our jurisdiction, as she knows, is quite different from operations conducted within or from the British islands. It is not our intention to introduce clauses that inhibit the agencies’ ability to act with agility or flexibility. I think that the amendment certainly does not assist in that regard, and is unnecessary. I hope she will withdraw it on that basis.
Joanna Cherry
Like the ISC, I am not wholly convinced by the Minister’s argument, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to take the following:
New clause 8—Equipment interference: risk assessment—
“A person making an application for a warrant involving equipment interference must make a detailed assessment of—
(a) the risk to the security or integrity of systems or networks that the proposed activity may involve;
(b) the risk to the privacy of those not being specifically targeted;
(c) the steps they propose to take to minimise the risks in subsection (a) and (b).
New clause 9—Critical national infrastructure: risk assessment—
“The person making an application for a warrant under this part must make a detailed assessment of the risks of the proposed activity to any critical national infrastructure.”
Joanna Cherry
The new clauses were tabled by the Scottish National party and reflect the arguments I made in support of amendment 465 on the necessity of carrying out risk assessments in advance of issuing a warrant. They are very much a corollary of that, and as that amendment has been withdrawn, I will not press the new clauses for the time being.
Question put and agreed to.
Clause 91 accordingly ordered to stand part of the Bill.
Clause 92 ordered to stand part of the Bill.
Clause 93
Power to issue warrants to the Chief of Defence Intelligence
Keir Starmer
Clause 93 is similar in many respects to clause 91, but obviously relates to the Chief of Defence Intelligence and is therefore shorter. It follows that the concerns that have been expressed by the Labour party, which I suspect the Scottish National party share, apply equally to the relevant parts of clause 93. I make that clear for the record, but it will not assist anyone to repeat them under the guise of clause 93.
The Chair
With this it will be convenient to consider new clause 11—Confidential and privileged material—
‘(1) Where any conduct under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the application must contain—
(a) a statement that the conduct will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, and
(b) an assessment of how likely it is that the material is likely to cover special procedure material.
(2) Where any conduct under this Part is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the application must contain—
(a) a statement that the conduct will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, and
(b) an assessment of how likely it is that the material is likely to cover excluded procedure material.
(3) Where a warrant issued under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the procedure set out at section 5 below must be followed.
(4) Where a warrant issued under this Part will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the procedure set out at section 6 below must be followed.
(5) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—
(a) there are reasonable grounds for believing that an indictable offence has been committed, and
(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and
(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(d) it is in the public interest having regard to—
(i) the public interest in the protection of privacy and the integrity of personal data, and
(ii) the public interest in the integrity of communications systems and computer networks, and
(iii) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or
(iv) the democratic interest in the confidentiality of correspondence with members of a relevant legislature; or
(v) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.
(6) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant in accordance with provisions made in Schedule 1 of the Police and Criminal Evidence Act and Schedule 5 of the Terrorism Act.
(7) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under schedule 1 PACE, unless seeking this information under PACE would defeat the purpose of the investigation.
(8) Special procedure material means—
(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984;
(b) correspondence sent by or intended for a member of the relevant legislature.
(9) Excluded material procedure has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.
(10) A warrant under this Part may not authorise any conduct undertaken for the purpose of accessing any material relating to matters subject to legal privilege.
(11) For the purposes of subsection (10), “legal privilege” means—
(a) communications between a professional legal adviser and their client or any person representing their client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and their client or any person representing their client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made—
(i) in connection with the giving of legal advice, or
(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings;
(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.
(12) Where the purpose of the warrant is to conduct interference to obtain material that would normally be subject to legal privilege but that falls within subsection (11)(d), the interference and examination conduct authorised must relate—
(a) to the offence as specified under subsection (5)(a), or
(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(a).”
Keir Starmer
I want to make some observations about this clause. I know that the Minister is looking at the way Members of Parliament are dealt with, but I want to put on the record what I see as the major limitations. The clause is intended to be additional protection when the purpose of a warrant for equipment interference is to obtain a communication sent by or intended for a member of a relevant legislature—so all our communication.
The first concern is that a warrant for equipment interference permits the obtaining of communications equipment data and other information, so the first observation about the clause is that there is no special provision for a warrant to interfere with an MP’s laptop to get secondary data or any other information. That applies to all of us. If a warrant were issued that touched on my equipment, as long as it dealt with equipment data and other information, there would be no need to consult the Prime Minister. I am not sure whether colleagues have appreciated that they could effectively be hacked without additional safeguard.
The second concern is that the added safeguard is when the purpose of the warrant is to obtain a communication. That is because communications are especially protected, but I remind colleagues that secondary data and equipment data may include the details of who has contacted whom, so if someone contacts an MP, the fact that they made that contact and who did so would not be protected. Here, the purpose is just to get a communication.
If the purpose was to achieve some other objective, but it was inevitable that communications between an MP and a constituent would be affected, clause 94 would not apply. I just wonder whether that needs a little further consideration because the protection for MPs’ communications ought to cover deliberate attempts to intercept a communication and also when it is likely to happen although the purpose is perhaps to intercept the communication of someone else. Those are real issues that I want to put on the record.
The other issue, which may be straightforward, is that clause 94 comes after the two powers we have seen in clauses 91 and 93, which deal with the Secretary of State’s warrants. It makes sense in that context, because it is the Secretary of State who consults the Prime Minister before acting. We will come on to equipment interference warrants that can be authorised by law enforcement officers. Those warrants will not go through the Secretary of State. It may be that clause 94 applies equally to those, and I suspect that it is intended to, because otherwise there would be another type of warrant that could touch on an MP’s unprotected correspondence; I cannot see that that is the intention.
If there is an easy an answer to this, I am happy to sit down and be corrected, but it seems that there are a number of ways in which the clause could be toughened up to achieve its desired objective.
Mr Hayes
The hon. and learned Gentleman does a service to the Committee by raising this, because it is a matter of continuing discussion. I think the Committee recognises that there are particular groups of people—lawyers, journalists, Members—who, because of the character, particularity and importance of the work that they do, need to be dealt with in an appropriate and sensitive way. We are talking not only about those people but about the people who are in contact with them. In a journalist’s case it would be sources; in a Member’s case it would be constituents and others. He is right, too, to suggest that we need to ensure that we have a consistent approach across the Bill.
It is true that there is a level of intrusion associated with content that is not shared in other areas. Equipment data are less intrusive than content, and we have already considered why they are necessarily subject to less stringent safeguards. Nevertheless, I think that the hon. and learned Gentleman is right that close examination of consistency in the Bill, in terms of how we deal with Members, is important. To that end, I hear what he says and will look at this again.
The conversation on this, in the Committee and more widely, needs to take full account of the proper assumption on the part of those who contact their Member of Parliament that any material they provide will be handled with appropriate confidentiality and sensitivity. The hon. and learned Gentleman makes that point well. It is a point that I have heard and will consider further.
Keir Starmer
I intervene to make sure that I have been clear enough on the second point, which is when law enforcement officers are issuing targeted equipment interference warrants. On my reading, the safeguard is the judicial commissioner, which is understandable. Clause 94 makes it clear that:
“Before deciding whether to issue the warrant, the Secretary of State must consult the Prime Minister.”
It is the consultation of the Prime Minister that is the added safeguard; I understand that. The problem with a clause 96 warrant is that it is not required to go to the Secretary of State. In other words, it goes from the law enforcement officer to the judicial commissioner, not via the Secretary of State.
One reading of clause 94 may be that it applies only to a clause 91 or clause 93 warrant. If that is right, there is no provision for consulting the Prime Minister if a clause 96 warrant is intended to obtain the communications of a Member of Parliament. There may be a simple explanation, but on the face of it that is a warrant that does not go via the Secretary of State, so clause 94 cannot operate in its intended way.
Mr Hayes
One of the most important things about the function of a Committee such as this is that we deal with minutiae, and rightly so. A bonus for this Committee is that, as its members know, I never feel entirely constrained by my notes. To that end, I want to emphasise that the Wilson doctrine of course applies to warrants issued by the Secretary of State. The hon. and learned Gentleman may well come back to me and say that greater clarity about the application of the Wilson doctrine in relation to the Bill is an important part of his argument, so for the record, and to make progress, I repeat that these are matters of ongoing consideration. I want to make absolutely sure that we get consistency, because the important thing about delivering certainty—I have argued throughout our proceedings that the Bill is about clarity and certainty—is that it is underpinned by consistency. In terms of the Wilson doctrine and the role of the Prime Minister in all these matters, I want to be absolutely confident that the measure can be and is applied to all the provisions we are considering.
Question put and agreed to.
Clause 94 accordingly ordered to stand part of the Bill.
Clause 95
Decision to issue warrants under sections 91 to 93 to be taken personally by Ministers
Amendment made: 257, in clause 95, page 72, line 33, leave out “the Scottish Ministers have” and insert
“a member of the Scottish Government has”.—(Mr John Hayes.)
Clause 95(2) provides that a decision to issue a warrant under Clause 92 must be taken personally by a member of the Scottish Government. This amendment corrects Clause 95(5)(b) so that it also refers to a member of the Scottish Government.
Clause 95, as amended, ordered to stand part of the Bill.
Clause 96
Power to issue warrants to law enforcement officers
Keir Starmer
I beg to move amendment 419, in clause 96, page 72, line 36, leave out
“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”
and insert “Judicial Commissioner”.
The Chair
With this it will be convenient to discuss the following:
Amendment 420, in clause 96, page 72, line 37, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”.
Amendment 421, in clause 96, page 72, line 40, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 422, in clause 96, page 72, line 42, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 423, in clause 96, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 424, in clause 96, page 73, line 4, leave out paragraph (d).
Amendment 425, in clause 96, page 73, line 7, leave out
“law enforcement chief described in Part 1 of the table in Schedule 6”
and insert “Judicial Commissioner”.
Amendment 426, in clause 96, page 73, line 8, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”.
Amendment 427, in clause 96, page 73, line 10, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 428, in clause 96, page 73, line 14, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 429, in clause 96, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 430, in clause 96, page 73, line 20, leave out paragraph (d).
Amendment 431, in clause 96, page 73, line 23, leave out subsection (3).
Amendment 432, in clause 96, page 73, line 29, leave out paragraphs (b) and (c).
Amendment 433, in clause 96, page 73, line 35, after “Where”, insert
“an application for an equipment interference warrant is made by a law enforcement chief and”.
Amendment 434, in clause 96, page 73, line 39, leave out subsections (6) to (10).
Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).
Amendment 437, in schedule 6, page 213, line 15, leave out Part 2.
Amendment 460, in clause 101, page 78, line 2, after “service”, insert
“or to a law enforcement chief”.
Amendment 461, in clause 101, page 78, line 6, leave out subsection (2)(c)
Keir Starmer
The clause contains a power for law enforcement officers to authorise equipment interference warrants. That would be a significant power for the law enforcement chief and those officers to exercise. I have two observations to start with. First, the law enforcement chief authorises the warrant on an application from a person
“who is an appropriate law enforcement officer in relation to the chief”.
That is all set out in schedule 6, to which we will come shortly.
There is a big distinction between clause 96(1) and (2). Subsection (1) states:
“A law enforcement chief described in Part 1 or 2 of the table in Schedule 6 may…issue a targeted equipment interference warrant”
in the circumstances set out in the subsection relating to a serious crime. Subsection (2) applies to a law enforcement chief described in part 1 of the table in schedule 6, and provides for a targeted equipment interference warrant to be authorised if it is
“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health”.
We have rehearsed some of this before, in the sense of whether there should be a threshold higher than simply “any” injury or damage, because that is on the face of it a very low threshold, given, on this occasion, to law enforcement officers. That is a real cause for concern.
Joanna Cherry
The bulk of the amendments in this group are SNP-only amendments. I think I am right in saying that the Labour party probably supports them, but I will leave it to the Labour party to confirm that.
Put simply, the set of amendments proposed by the Scottish National party would remove the power to issue equipment interference warrants from law enforcement chiefs, immigration officers, officers of Revenue and Customs, customs officials, the chair of the Competition and Markets Authority and the Police Investigations and Review Commissioner, and instead judicial commissioners would be responsible for issuing warrants on application from law enforcement chiefs. It is a disturbing anomaly that the Bill proposes that authorisation for the most intrusive form of surveillance—hacking—should be self-issued by a range of public bodies. Could the Government clarify the reason for that anomaly?
This process would put a range of actors, from chief constables to immigration officers, in charge of issuing hacking warrants. The proposal would give these individuals greater powers of intrusion than the security services have under later parts of the legislation—they are at least required to seek the authorisation of the Secretary of State for hacking activities. It is in my argument self-evident that the process should be for law enforcement officials to make an application for a judicial commissioner to decide the application.
I mentioned immigration officers. The Immigration Law Practitioners’ Association has produced a briefing for members of the Committee, and it has drawn to our attention the fact that under clause 96 persons appointed as immigration officers under paragraph 1 of schedule 2 to the Immigration Act 1971 are among those who can apply for these warrants for a serious crime that is
“an immigration or nationality offence”
as defined, or where the warrant is considered
“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health or of mitigating any injury or damage to a person’s physical or mental health”.
The Immigration Law Practitioners’ Association has a long history of briefing, with some distinction, hon. Members on immigration matters. The issue that it identifies is that the wording of the clause does not identify which immigration offences are considered to be serious crimes or, indeed, whether they are all considered to be serious crimes, so there is a lack of transparency in the legislation.
I should address one other amendment, which is on a slightly different point. SNP amendment 435 is an attempt to import into clause 96 the proportionality and technical assessment requirements that I addressed in some detail in my argument in support of amendment 465 to clause 91. I will not rehearse that again.
Mr Hayes
Thank you, Mr Owen. A number of points have been raised. Clearly, law enforcement agencies use equipment interference to stop serious crime, but it is important to add that they also use it to help people at risk of serious harm. That might include locating missing people or helping vulnerable children; there is a whole range of preventive measures that anticipate harm. The Bill brings into a single place the powers that are already used in those ways; there are no additional powers here.
It is also important to point out that these matters were looked at, as were all matters, during the extensive scrutiny that the Bill enjoyed before it came to the Committee. None of the reports of the three Committees of the House, for example, recommended changing the current arrangements for the way in which these kinds of warrants are authorised and used. We have modelled the arrangements in the Bill on the current system under the Police Act 1997, which authorises property interference. That is how this activity is currently dealt with.
Joanna Cherry
I hear what the Minister is saying, but does he not accept the force of the argument that it is anomalous that the security services at least have to go to the Secretary of State, whereas law enforcement chiefs will be able to issue such warrants themselves?
Mr Hayes
I was coming to that argument, which was also made by the hon. and learned Member for Holborn and St Pancras. I simply say that the character of the warrants we are speaking about, which law enforcement chiefs apply for, is central to much of what happens now in the investigatory process. It is based on those chiefs’ special understanding of such investigations. They are clearly answerable for the effective policing of their area, and they certainly have the experience and expertise to make the right decisions on what equipment interference is necessary in an investigation of a serious crime. The status quo suggests that the system works and the powers that we are describing have real value in dealing with crime and in anticipating the other kinds of harm that I have described.
In drawing up a Bill, as I have argued previously, one looks to cement existing powers, but of course one also scrutinises what is not working. If we had thought that the current system was not working, we would certainly have looked to change it. The Bill is consistent with other powers in the 1997 Act, as I have described, such as property interference. It would arguably be anomalous to separate what the police do in respect of property from what they do in respect of technology. It might well, in the hon. and learned Lady’s eyes, deal with one anomaly only to create another.
Joanna Cherry
Does the Minister agree that there is another anomaly? To search someone’s house, north and south of the border, one has to have a warrant issued by a judge. The clause will allow people to hack into equipment, with all the information that it contains in this modern world, without a judge-issued warrant.
Mr Hayes
The hon. and learned Lady is right that these things need to be consistent, as I said in the previous discussion, but we have been arguing in favour of the double-lock throughout this consideration. I am not sure it would be sensible for us to use the Bill to change existing legislation that is doing its job. That was not the view of law enforcement itself; of David Anderson, when he looked at these matters; or of the Joint Committee when it considered them. It would be curious—I put it no more strongly than that—if we were suddenly to focus on this and make a considerable change to existing practice.
The use of covert human intelligence sources under the Regulation of Investigatory Powers Act 2000 is also well established. The current practice is subject to the chief surveillance commissioner, who has publicly affirmed that law enforcement chiefs apply themselves with due care and attention to ensure they are compliant with the law and acting in good faith. Not only has the scrutiny of the Committees I have described not made the point that the hon. and learned Lady makes, but it seems that my defence of the status quo is supported by the evidence of the commissioner.
Equipment interference warrants must be approved by the judicial commissioner, so the hon. and learned Lady’s argument that a judge deals with the search of a property, and my argument that a judicial commissioner will approve the kinds of warrant we are debating now, seem to be equivalent. Perhaps she thinks a judicial commissioner is not the best person to do that.
Joanna Cherry
The position that has consistently been put forward by the Scottish National party is that the judicial commissioner should not be in a double-lock system. He or she should be looking from the outset at the merits of necessity and proportionality. That has been our consistent position in relation to all provisions related to warrantry in the Bill.
Mr Hayes
The hon. and learned Lady, with due respect, is shifting the ground. On the one hand, she says that she compares the arrangements for searching a house, the warrant for which is approved by a judge, with this system, on the grounds that there should be judicial involvement in both. On the other, when I said that there will be judicial involvement in both, she returned to the argument that the Secretary of State should be involved. I think she needs to know what she wants.
Joanna Cherry
With all due respect, I have been crystal clear about this from the beginning. “Judicial involvement” is a very loose term. Judicial involvement, in which the judge is bound by the rules of judicial review, is a considerably lesser involvement than if he or she is able to look at matters purely on their merits, as in a system of pure judicial warrantry, advocated by the Scottish National party.
Mr Hayes
There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.
Keir Starmer
I am grateful to the Minister. I do not intend to vote against the clause, but I have a nagging concern, which I will try to articulate. A communication in the course of its transmission is highly protected—the Secretary of State must sign off a warrant. The Secretary of State individually considers those warrants and we know the numbers. That is an understandably high level of protection for a communication in the course of its transmission.
Mr Hayes
The hon. and learned Gentleman has offered an interesting observation. My counter-observation—perhaps it is a little more than that; it is more of a considered assertion—is that the kind of investigation I have described needs to happen with speed, and certainly with expertise. I think we agree that that is supported by the evidence I have provided and the evidence that has been made available to the commissioner. There needs to be flexibility in the system, and I think that is provided for. He is right that there should also be a legal test and a legal check on that test, which we have also provided for in the Bill. My assertion is that the amendments would provide a single lock, but we are providing a double lock. What’s not to like? On that basis, I ask the hon. and learned Member for Edinburgh South West not to press her amendment.
Joanna Cherry
As the Minister will no doubt have gathered from the last few days in Committee, it is my opinion that there is a lot not to like in this Bill, but I am prepared to withdraw my amendment at this stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 96 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 97
Approval of warrants by Judicial Commissioners
Mr Hayes
I beg to move amendment 258, in clause 97, page 75, line 4, leave out from “a” to “under” and insert
“decision to issue a warrant”.
This amendment, and amendments 259 to 262, each make a minor drafting change to take account of the fact that clause 97 may also apply in a case where a warrant has already been issued (see Clause 98).
Mr Hayes
These are fairly straightforward amendments. Like all the Government amendments so far considered, they are minor and technical. They do not serve to change the scope of the warrant approval process, but make clear that judicial commissioner approval will apply to all equipment interference warrants—in that sense, they are relevant to the debate we have just been having. They replace the phrase “warrant to be issued” in subsection (3) with “decision to issue a warrant”, to reflect more clearly that in urgent cases the warrant would already have been issued by the Secretary of State or a law enforcement chief.
Amendment 258 agreed to.
Amendments made: 259, in clause 97, page 75, line 6, leave out from “a” to “under” and insert
“decision to issue a warrant”.
See the note to amendment 258.
Amendment 260, in clause 97, page 75, line 8, leave out from “a” to “under” and insert
“decision to issue a warrant”.
See the note to amendment 258.
Amendment 261, in clause 97, page 75, line 10, leave out from “a” to “under” and insert
“decision to issue a warrant”.
See the note to amendment 258.
Amendment 262, in clause 97, page 75, line 12, leave out from “a” to “under” and insert
“decision to issue a warrant”.—(Mr John Hayes.)
See the note to amendment 258.
Question proposed, That the clause, as amended, stand part of the Bill.
Keir Starmer
We have been over the territory of the judicial test, and I do not intend to rehearse the arguments again, other than to say that in circumstances where an equipment interference warrant has been issued by a law enforcement chief—it has not gone through the Secretary of State—it is particularly important for the review by the judicial commissioner to be tight. All the arguments made earlier about the test are reinforced in cases that do not go to the level of the Secretary of State. Any arguments about deference are unpersuasive. There is a particularly powerful argument for tightening up the judicial test throughout the Bill, and I have raised that topic on a number of occasions. There is a particular need for that where a warrant has come about by a different route, without receiving the scrutiny that a warrant signed by the Secretary of State would have.
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.
The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.
Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.
Joanna Cherry
I have very little to say, other than that I support the thrust of the argument made by the hon. and learned Member for Holborn and St Pancras; but I also note what the Solicitor General said about giving the matter anxious consideration. I am grateful to him for that, because it is a central concern.
The Solicitor General
I have nothing further to add.
Question put and agreed to.
Clause 97, as amended, accordingly ordered to stand part of the Bill.
Clause 98
Approval of warrants issued in urgent cases
Joanna Cherry
I beg to move amendment 439, in clause 98, page 75, line 25, leave out “considered” and insert
“had reasonable grounds for believing there was an emergency situation posing immediate danger of death or serious physical injury or that the physical security or integrity of the nation was endangered”.
The Chair
With this it will be convenient to discuss amendment 440, in clause 98, page 75, line 27, after “must”, insert “immediately”
Joanna Cherry
Amendment 439 pertains to the approval of warrants issued in urgent cases. Simply, the amendment would provide that an urgent warrant can be issued only where there is a reasonable belief that it is necessary to do so for the purpose of protecting life or preventing serious injury. That is a recurrent theme, which I have addressed previously, and I will not repeat the arguments.
Keir Starmer
Our amendment 440 is modest and would insert the word “immediately”. I need say no more than that.
The Solicitor General
May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.
The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 98 ordered to stand part of the Bill.
Clause 99
Failure to approve warrant issued in urgent case
Keir Starmer
I beg to move amendment 441, in clause 99, page 76, line 10, leave out paragraph (b).
The Chair
With this it will be convenient to discuss amendment 442, in clause 99, page 76, line 12, leave out subsection (4) and insert—
‘(4A) Where the judicial commissioner refuses to approve an urgent warrant, they must direct that all of the material obtained under the warrant is destroyed, unless there are exceptional circumstances.”.
Keir Starmer
The amendment is minor, in keeping with the amendments that we have already debated on material obtained under warrants that are later cancelled or not authorised. The amendment would tighten the requirements in cases where a judicial commissioner refuses to approve a warrant; the reason for that is self-evident. We have rehearsed this territory to some extent.
The Solicitor General
I resist the amendment. The hon. and learned Gentleman is right that we have considered similar amendments in relation to clause 23 in part 2 of the Bill. With respect, it is not right to fetter the discretion of the judicial commissioners, who are experienced and senior members of the judiciary. They should be allowed to decide such matters on a case-by-case basis. The amendment prompts the questions of what might be meant by “exceptional circumstances” and of who would determine whether the threshold had been met in a given instance. I worry that that would just complicate the process. We are all agreed that commissioners will give each case proper consideration, and the commissioners will seek to serve the clear public interest in ensuring that material that should not be retained is destroyed. Well intentioned though this amendment is, it would add undue complication, and we oppose it for that reason.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 99 ordered to stand part of the Bill.
Clause 100
Items subject to legal privilege
Keir Starmer
I beg to move amendment 499, in clause 100, page 77, line 3, after “items”, insert “presumptively”.
The Chair
With this it will be convenient to discuss the following:
Amendment 500, in clause 100, page 77, line 8, after “items”, insert “presumptively”.
Amendment 501, in clause 100, page 77, line 13, leave out paragraph (a) and insert—
“(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require interference with equipment for the purpose of obtaining or (in the case of a targeted examination warrant) the selection for examination of those items, and”.
Keir Starmer
We again return to familiar territory. The amendment would provide an additional safeguard in relation to items subject to legal privilege. The structure of clause 100 is precisely the same as the structure of similar clauses addressing legal privilege that we have debated at some length. As I indicated last time we spoke on this subject, amendments 499 to 501 are those that the Bar Council suggests are appropriate to align the safeguard with its understanding of legal professional privilege. We have gone over this ground already. The clause and amendments have the same structure as earlier ones, and I do not think I will assist by repeating what I have said. I stand by the remarks that I made earlier.
The Solicitor General
Again, I am grateful to the hon. and learned Gentleman. He is right to say that this is a repeat of arguments we had on another part of the Bill. As he has laid out his arguments by adopting his previous submissions, I do likewise on behalf of the Government. Recalling those briefly, my concerns about the dangers of over-definition remain. However, I do not want material that should not be caught by the Bill to be caught by it in any inadvertent way. We are talking about cases where the purpose of a targeted equipment interference or examination warrant is to acquire or examine items that are subject to legal professional privilege. We have additional protections that are a sufficient safeguard and strike that essential balance. For all the reasons I advanced previously, I urge the hon. and learned Gentleman to withdraw the amendment at this stage.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 100 ordered to stand part of the Bill.
Clause 101
Requirements which must be met by warrants
Joanna Cherry
I beg to move amendment 275, in clause 101, page 79, line 19, leave out “describe” and insert “specify”.
The Chair
With this it will be convenient to discuss the following:
Amendment 452, in clause 101, page 79, line 21, leave out paragraph (b) and insert—
“(b) precisely and explicitly the method and extent of the proposed intrusion and the measures taken to minimise access to irrelevant and immaterial information”.
Amendment 453, in clause 101, page 79, line 22, at end insert—
“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security;
(d) in a declaration with supporting evidence—
(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and
(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile, and
(e) in a separate “Cyber-Security Impact Assessment” all potential risks and damage to the security of the device targeted and communications systems more generally and how those risks and/or damage will be eliminated or corrected.”.
Joanna Cherry
Amendment 275 is a simple amendment to subsection (4), which sets out the matters that a targeted equipment interference warrant must “describe”. The amendment would change that word and require more specificity.
The Solicitor General
I am not sure whether that will make any practical difference, but I am happy to consider the hon. and learned Lady’s amendment.
Joanna Cherry
I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.
Keir Starmer
Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.
The Solicitor General
To deal with the thrust of the hon. and learned Gentleman’s argument, we would say that the amendments are unnecessary because the draft statutory code of practice already requires an application for a targeted warrant to set out what the conduct is and how collateral intrusion is being managed, which is the really important public interest here. That should rightly be in the warrant application itself, and the detailed requirements should be in the statutory code; that was recommendation 5 in the report by David Anderson QC, so we are faithfully following his recommendation.
On the code of practice, the hon. and learned Gentleman will find the requirements under the heading “Necessity and proportionality”, particularly in paragraphs 3.26, 3.27 and 4.10, which deals with collateral intrusion.
I note that amendment 453 is part of this group, so I will speak briefly to that. We have concerns that I have expressed before in other contexts about the problem of the police being asked to exhaust alternative methods even where there is unlikely to be any effect. That is not only wasteful and costly, but could unintentionally lead to further undue intrusion into people’s privacy. For those reasons, I have grave concerns about that amendment.
Byron Davies (Gower) (Con)
Will the Solicitor General accept our plea—I speak as someone who has operated this in a practical situation—that what is being asked in this amendment is completely impossible?
The Solicitor General
I am grateful to my hon. Friend, who speaks with many years of operational experience in the Metropolitan police. When he was a senior officer in that force, he had responsibility for investigations and took his responsibilities extremely seriously. I am grateful to him for his contribution. We have to balance any concerns about a jump to these powers with real-world responsibilities. I want clarity, but also an element of flexibility for those who investigate crime, so that they can get on with the job in an effective way and catch criminals. That is what we all want. I am worried that the amendment, well intentioned though it is, would complicate the process. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras not to press the amendment to a vote.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 101 ordered to stand part of the Bill.
Clause 102
Duration of warrants
Keir Starmer
I beg to move amendment 635, in clause 102, page 80, line 21, leave out
“ending with the fifth working day after the day on which”
and insert “of 48 hours after”.
The Chair
With this it will be convenient to discuss the following:
Amendment 636, in clause 102, page 80, line 21, leave out
“ending with the fifth working day after the day on which”
and insert “of 24 hours after”.
Amendment 281, in clause 102, page 80, line 21, leave out “fifth working day” and insert “twenty four hours”.
Amendment 282, in clause 102, page 80, line 23, leave out “6” and insert “1”.
Keir Starmer
The clause deals with the duration of warrants, and amendment 635 deals with subsection (2), which is concerned with urgent equipment interference warrants that, because they are urgent, have not been through a judicial commissioner. Under the subsection, warrants cease to have effect at the end of five working days after the day on which they are issued. I have a number of observations on that. We touched on the urgent provision. Up until now in the Bill, the provision has been for urgent warrants to remain valid for three working days. For equipment interference, we leap to five. I would certainly like an explanation why. A warrant that allows interference with computers and laptops for obtaining communications and other information suddenly moves from three days to five—not just five days, but five working days. That means that on occasion it could be seven days, and with a bank holiday it could be eight days, so we are moving well beyond the realms of an urgent warrant.
This amendment is similar to one relating to other urgent provisions that aimed to bring the duration down to 24 hours. There is a real concern about urgent warrants and how long they last. Very strong justification is required for allowing an urgent warrant that has not gone through the double lock to continue for between five and eight days. If the Minister is not about to provide that, I hope he will accept the amendment.
Mr Hayes
Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:
“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”
The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.
The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.
Joanna Cherry
The Joint Committee and the Intelligence and Security Committee did deal with interception warrants and recommended 24 hours and 48 hours respectively. Given that hacking is potentially more significant and intrusive, would it not be logical to have a similar reduction in relation to hacking?
Mr Hayes
I think the hon. and learned Lady is probably considering a different matter from the one I am talking about. I may have been insufficiently clear, so let me briefly make my case again. I am speaking about the second aspect of the amendments, which is to change the length of time for which a warrant lasts. She will know that, on that issue of duration, David Anderson argued that a serious crime warrant should be extended to last for six months rather than three months, bringing it into line with national security warrants. He explained that, when a warrant lasts only three months, it is often necessary to start preparing a renewal application without a full understanding of the impact of the original warrant. It is important to point out in that respect that equipment interference is not necessarily more intrusive than other techniques. The amendment is out of line with David Anderson’s view in that it seeks to curtail duration of a warrant.
That brings me to the first part. I think I may have confused the hon. and learned Lady by dealing with the points in reverse order, but I come now to the first part of what the amendments will do, which is the matter to which she refers—the five days or three. She will know that there was considerable discussion about that in the earlier stages of scrutiny in the Joint Committee.
Keir Starmer
I am curious. I understand that material has to be got together and the application made, but for other warrants it is three working days and for these warrants it is five working days. What is it about these warrants that requires the additional two days, which are not needed for other warrants where there is an urgent procedure? I am genuinely curious, because somebody drafted this deliberately.
Mr Hayes
Clause 102, on the duration of the equipment interference warrants, is the same as clause 28, on the duration of interception warrants. Urgent warrants must be approved by the judicial commissioner after three working days. The urgent warrant lasts for five working days, at which point it must be renewed or it will expire. My point is that is about practicality, rather than there being anything philosophical about it. It is purely an operational matter.
David Anderson, in his report, to which I drew attention and which am now struggling to find, although the Solicitor General is as ever at my service—[Interruption.] That comes as good news to him. In his report, David Anderson deals particularly with these matters on page 275, paragraph 14.69. Earlier I mentioned recommendation 37, that
“to the effect that serious crime warrants should have the same 6-month duration as national security warrants, responds to the recent comment of the IOCC that ‘there remains a strong practical case for increasing the validity period for serious crime warrants to six months’”.
That is the second of the two points that the hon. and learned Member for Edinburgh South West wanted me to address.
My view is that on duration we are in line with both sensible practice and the recommendations of the independent reviewer. On the time between the application and the engagement, we are simply dealing with practicalities.
Keir Starmer
I wish to help the Minister. One of the points I was making does not withstand scrutiny and I will not pursue it or press the amendment. I accept what is being said.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 ordered to stand part of the Bill.
Clause 103 ordered to stand part of the Bill.
Clause 104
Modification of warrants issued by the Secretary of State or Scottish Ministers
Keir Starmer
I beg to move amendment 638, in clause 104, page 83, line 17, at end insert—
“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and
(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”
The Chair
With this it will be convenient to discuss the following:
Amendment 639, in clause 104, page 83, line 18, leave out “Sections 94” and insert
“Section [NC11 Confidential and privileged material]”.
Amendment 502, in clause 104, page 83, line 22, at end insert—
“( ) Where section 100 (items subject to legal privilege) applies in relation to a decision to make a modification of a warrant as mentioned in subsection (2)(a), (c) or (d), other than a decision to which subsection (7) applies, section 97 (approval of warrants by Judicial Commissioners) applies to the decision as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to renew it).”
Amendment 640, in clause 104, page 83, line 23, leave out “Section 100” and insert
“Section [NC2 Items subject to legal privilege]”.
Amendment 641, in clause 104, page 83, line 35, at end insert—
“(14) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 97.”
Amendment 642, in clause 105, page 84, line 4, leave out from “period” to “which” in line 5 and insert “48 hours after”.
Amendment 643, in clause 105, page 84, line 4, leave out from “period” to “which” in line 5 and insert “24 hours after”.
Amendment 644, in clause 105, page 84, line 26, at end insert—
“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and
(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”
Amendment 503, in clause 105, page 84, line 33, at end insert—
“( ) Where, by virtue of section 104(10), section 100 (items subject to legal privilege) applies in relation to the making of a modification of a warrant pursuant to section 104(7), this section applies as if each reference in subsections (2) and (5) to (8) to a designated senior official were a reference to a Judicial Commissioner.”
Keir Starmer
The amendment relates to modification provisions similar to those in clause 30, which we discussed at some length last week. I will not go over the territory again, but all the arguments I made in relation to modifications under clause 30 apply equally to modifications under clause 105 and I will not take time by going through all the similar points. It is worth observing, however, that clause 104(2) lists in paragraph (a) to (f),
‘“The only modifications which may be made under this section”,
which cover practically all the matters that appear on the requirements of warrants, so it is an interesting use of the word “only”.
There is a substantive issue on which I would like an answer. When we were debating clause 30, I made the point that the test for a modification set out in clause 30(9) is a test of necessity and proportionality that only applies to major modifications, not minor ones. We have dealt with that and I will not go over it again, but it seems to me that the test for a major modification is, quite sensibly, whether it is necessary and whether the conduct authorised by it is proportionate. I was expecting to see in clause 104(4) a version of clause 30(9) and I did not. Perhaps the Solicitor General will explain why.
The Solicitor General
In this context, all modifications are considered major; that is the difference. I hope that helps.
Keir Starmer
Well, no. [Laughter.] I do not mean that disrespectfully, but the test in clause 30(9), which is in relation to major modifications, is whether the modification is necessary and whether it is proportionate. That is a sensible test. I accept that the test in clause 104(4) is in relation to all modifications, but one would expect to see the words “that the modification is necessary”, not
“that the warrant as modified continues to be necessary”.
The Solicitor General
In the context of EI, we are not making the distinction between major and minor, so the effect is that all modifications will be major. If there is a discrepancy, I am happy to look at the language again to make it absolutely clear. I hope that assists the hon. and learned Gentleman.
Keir Starmer
I am grateful for that indication. Otherwise, in relation to modifications, my points are essentially the same as I made on clause 30. I know the Solicitor General has agreed to look at and deal with at least some of the points I made last time; I ask him to take this modifications clause under the same umbrella when he looks at the modification provisions.
The Solicitor General
I will try to deal with this in short order. I am grateful to the hon. and learned Gentleman for the way in which he advanced his argument. It is in that spirit that I adopt the arguments I made previously. I simply make the point that under this clause we are dealing with safeguards that in my view do not undermine the important double lock standard.
I have some concerns about the amendments that relate to the judicial commissioner having to approve the decision to make modifications to EI warrants. The decision will already have been subject to the safeguard, so to require the judicial commissioner to authorise tactical operation day by day—indeed, minute by minute—is not necessary; in fact, it could be operationally damaging. The Government believe that the code makes clear, on the basis of the arguments we had before, the way in which the scope of the warrant needs to be addressed. Reading across, I would say that the safeguards in the code are helpful and clear.
Keir Starmer
One concern is that under subsections (9) and (10) as they stand there is no requirement for modification that touches on MPs or legal privilege to go to a judicial commissioner, which is at variance with the point that the Solicitor General just made.
The Solicitor General
The hon. and learned Gentleman anticipates the point that I was about to make. I am happy to consider whether subsections (9) and (10) need to be strengthened to put it beyond doubt that the double lock will apply in those contexts. I hope that that helps him. I have already made similar points on the thrust of these amendments and there is nothing more that I need to add at this stage other than to respectfully invite him to withdraw his amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 ordered to stand part of the Bill.
Clauses 105 to 108 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.— (Simon Kirby)
Investigatory Powers Bill (Tenth sitting)
Thursday 21st April 2016
(8 years, 10 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
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The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
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The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
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The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 9 / Noes: 2 - Question accordingly agreed to.
The Chair
Order. I have an announcement to make before we continue with the line-by-line scrutiny. The hon. Member for North Dorset will be discharged from the Committee this afternoon. It is his final session and we wish him well. I am sure you would like to show him your appreciation for the work that he has done.
The Solicitor General (Robert Buckland)
On a point of order, Mr Owen. May I add my remarks to yours? We wish my hon. Friend well and hope that he has a swift recovery from his operation.
Clause 109
Implementation of warrants
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I beg to move amendment 293, in clause 109, page 87, line 39, leave out subsection (3).
This amendment would remove the provision which allows a targeted equipment interference warrant to be served on a person outside the UK for the purpose of requiring that person to take action outside the UK.
The Chair
With this it will be convenient to discuss the following:
Amendment 645, in clause 109, page 87, line 41, at end insert—
“(3A) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office where it is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
This excludes the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction while enabling the government to seek voluntary assistance from CSPs in non-MLA countries.
Amendment 679, in clause 110, page 88, line 9, at end insert—
“(1A) Where such a warrant is to be served upon a person outside the United Kingdom the warrant shall be served at that person’s principal office outside the United Kingdom, where it is established, for the provision of services.”
Amendment 694, in clause 110, page 88, line 10, at beginning insert—
“Where service of a warrant in the manner envisaged in subsection (1A) is considered unfeasible or inappropriate in the circumstances,”
Amendment 647, in clause 110, page 88, line 10, after “Kingdom”, insert—
“the warrant shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”
The Home Secretary confirmed at second reading that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs. This would make government’s commitment clear on the face of the Bill (as it is in the relevant code of practice) and address contradictory provisions that remain in the Bill.
Amendment 648, in clause 111, page 89, line 19, after “take”, insert—
“which for a relevant operator outside the United Kingdom shall include—
(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or
(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”
This amendment clarifies the reasonableness test for overseas CSPs.
Gavin Newlands
It is a pleasure to serve under your chairmanship, Mr Owen. May I add to your comments that I will miss the exchanges with the hon. Member for North Dorset? I wish his replacement well.
Clauses 109 and 110 deal with issues about compelling a third party to provide assistance in the execution of a warrant and extraterritoriality, which is the subject of amendment 293. In speaking to the amendment, and to the clause more generally, I will unavoidably stray into matters relating to clause 110, as the two are inextricably linked.
Clause 109 provides the UK Government with the power to issue warrants that in turn force third-party organisations or individuals outside the UK to assist in acquiring information for the means of equipment interference. The clause states that
“any person whom the implementing authority considers may be able to provide such assistance”
can be served with a warrant to assist in carrying out a targeted hacking warrant. Under clause 110(2), this warrant may be served at a person’s principal office or specified address in the UK, or by making it available for inspection in the UK after appropriate steps have been taken to bring the contents of the warrant, and its very existence, to the attention of the person.
First, the problem here is the lack of judicial authorisation in this part of the process. Privacy International rightly points out that this compelled assistance will not be subject to judicial authorisation. Although law enforcement and security and intelligence agencies will have to seek a warrant to gain access to people’s devices and computers, it is correct that those authorities are not required to seek judicial approval to compel technology companies to assist in their investigations.
Secondly, we should be mindful of the difficulty that this places on any individuals or organisations who are forced to comply with the Government’s demands. These issues were heard by the Science and Technology Committee, where serious concerns were raised about the security implications of forcing companies to, for example, upload and install malware, as well as the fear that equipment interference could jeopardise their business model. The Science and Technology Committee took note of these issues and concluded that
“the industry case regarding public fear about ‘equipment interference’ is well founded.”
Amnesty International UK is deeply concerned about the dangerous precedent that this broad, aggressive power will set in forcing third-party companies to engage in hacking without any independent provision or scrutiny, and to do so in secret.
Thirdly, the extraterritorial measures in clauses 109 and 110 may cause more problems than they solve. That is why amendment 293, which stands in my name and that of my hon. and learned Friend the Member for Edinburgh South West, seeks to delete subsection (3) entirely, thereby removing the extraterritorial aspect. If we serve hacking warrants on those outside the UK, what sort of message does that send to other countries? We need to be mindful that introducing this type of clause could open the floodgates for other countries to follow suit, which will ultimately have an impact on companies based in the UK. That point was articulated by Yahoo!, which said:
“Extraterritoriality encroaches on the sovereign rights of other governments and risks retaliatory action, including against UK CSPs operating overseas.”
On that point, the Government’s independent reviewer’s report suggests that, when countries seek to extend their legislation extraterritorially, those powers may come into conflict with legal requirements in the country in which companies being asked to comply with a legal request are based. Companies explained to the reviewer that they did not consider it was their role to arbitrate between conflicting legal systems. The protection of vital human rights should not be left to the goodwill and judgment of a company. The concerns of the industry were articulated in this perfect quote. The industry
“expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”
I shall finish with this comment from Yahoo! It states:
“The current legal framework comprises the law in the requesting country, law in the receiving country and the international agreements that connect the two.”
It is additionally possible that the requesting and receiving countries’ laws may be in conflict. For example, the receiving country’s law may outlaw the provision of content data outside their own legal process. It continues:
“Taken as a whole, this framework is fragmented, with gaps and conflicts which have gone unaddressed for many years. In this more global communications environment, this fragmentation has become more and more obvious and creates a patchwork of overlapping and conflicting laws which overseas and domestic UK CSPs must navigate in order to discharge their legal obligations to safeguard users’ privacy and to respond appropriately to valid requests for access to data… It also creates a complex environment for users to navigate and establish their privacy rights.”
This issue is global, and national laws cannot resolve global issues.
Keir Starmer (Holborn and St Pancras) (Lab)
I will be brief. Members will have observed that the amendments in my name are in keeping with my previous amendments about implementation, service and extraterritoriality in relation to other warrants. I will not repeat the points I made then. The only one that is different is amendment 646, a simple proposed change to clause 109 that would add the provision:
“A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”
I think that may be implicit. If the Minister could indicate that that is his understanding, that might allay concerns and the amendment would not need to be pressed.
The Minister for Security (Mr John Hayes)
As the hon. and learned Gentleman says, we have been down this road before. I well recall discussing similar amendments to the targeted interception provisions in part 2. The Bill maintains the existing position in relation to extraterritorial jurisdiction and those obligations that apply to overseas companies. I am unhesitating in my view that overseas companies, because of their important role in communications, must do their bit to do the right thing, as I said previously and memorably. As a result, I will not tire the Committee by going into that argument in great detail.
Amendment 293 to clause 109 seeks to remove the ability to serve a warrant on an overseas provider and amendment 645 seeks to remove the ability to serve a warrant on an overseas provider when a mutual legal assistance agreement is in place. I draw the Committee’s attention once again to David Anderson’s comments in his report, in paragraph 11.26:
“There is little dispute that the MLAT route is currently ineffective.”
I will not quote it at length but he goes on to say that it is because it is too slow and so on. I do not think that those amendments are in line with either his view or mine.
The effect of accepting the first amendment is evident. It would mean we could serve an equipment interference warrant only on a provider based in the UK. The second amendment seeks to assert mutual legal assistance arrangements as the only route. For the reasons I have already given, that is not appropriate.
The hon. and learned Gentleman asked, in the context of his amendment, whether that matter was implicit. Yes, it is implicit and I can confirm what he thought might be the case.
The arguments have already been made and, on careful reconsideration, the hon. Member for Paisley and Renfrewshire North will realise that his amendment and argument are pseudodox and will withdraw on that basis.
Gavin Newlands
I thank the Minister for that response and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I do apologise, Mr Owen; I strayed on to amendment 646 thinking it was part of the last batch, so I have dealt with it and intend to withdraw it. My apologies.
The Chair
The amendment has not been moved.
Question put, That clause 109 stand part of the Bill.
Gavin Newlands
I can deal with this in fairly short order. The Scottish National party tabled an amendment to leave out the clause, which places a duty on telecoms operators to assist with the implementation of equipment interference warrants. We agree with those in the industry who are rightly concerned about being forced by the state to engage in the legal hacking of customers and other individuals and groups.
The Bill defines a telecoms operator as
“a person who…offers or provides a telecommunications service to persons in the United Kingdom, or…controls or provides a telecommunication system which is (wholly or partly)…in the United Kingdom, or…controlled from the United Kingdom.”
That flexible and all-encompassing definition means that not only online companies such as Google, Facebook, Twitter, Dropbox and Yahoo!, but private offices, businesses, law firms, the networks of Departments such as the NHS and institutional networks such as those of universities would be forced to comply with the Government’s instructions to interfere with or hack the communications of an individual or group. That was confirmed by the Home Secretary in her evidence to the Joint Committee that scrutinised the draft Bill. That power will place those companies, whose services most, if not all, of our constituents use, in a deeply unsettling and invidious position.
I am not convinced that any of our constituents would be pleased to hear that we were passing legislation that would allow their email accounts or Facebook pages to engage in illegal hacking on behalf of the state. The extraordinarily expansive power that the clause gives the Government will force companies to engage in highly controversial work on their behalf, which will no doubt be in conflict with the interests of cybersecurity and product security that the companies work hard to innovate in, protect and extend. Forcing these companies to engage in legal hacking could seriously harm their business and operations. It will also lead to some of their customers and users losing trust in their businesses. I am not surprised that companies have long expressed deep concern about the powers laid out in the clause, as it is in direct conflict with their business interests. For those reasons, the SNP would like to see the clause deleted from the Bill.
Gavin Newlands
I shall do my best impression of her, Mr Owen, but I fear it will be inadequate.
I beg to move amendment 296, in clause 113, page 91, line 22, at end insert—
“(A1) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an international information sharing treaty.”
This amendment would require that information obtained via an equipment interference warrant is only shared with overseas authorities where a mutual legal assistance treaty has been put in place for the purpose of doing so.
Clause 113 deals in part with the overriding issue of information obtained through equipment interference being shared with overseas authorities. We should take note of the oral and written evidence submitted by Amnesty International on this point about the lack of any proper controls over intelligence sharing with foreign authorities. The human rights implications may be very serious indeed. For example, there is nothing in the Bill to prevent data being shared with an overseas authority when that might lead to the abuse, or possibly torture, of an individual or group. Surely we should set an example by ensuring that data gathering does not lead to torture; that should be the minimum standard expected of a civilised country such as ours.
However, if the SNP and Amnesty International are a little left-wing for hon. Members’ tastes, I give them the Intelligence and Security Committee, which also criticised the lack of clarity on this point when it noted that the Bill
“does not…meet the recommendations made in the Committee’s Privacy and Security Report that future legislation must set out these arrangements more explicitly, defining the powers and constraints governing such exchanges.”
The written evidence submitted by Yahoo! and others expressed concern that the Government’s apparently unilateral assertions of extraterritorial jurisdiction
“will create conflicting legal obligations for overseas providers who are subject to legal obligations elsewhere.”
David Anderson has also noted the lack of detail in this section of the Bill. He called for information sharing with foreign countries to be subject to strict, clearly defined and published safeguards. His report states:
“The new law should make it clear that neither receipt nor transfer as referred to in Recommendations 76-77…should ever be permitted or practised for the purpose of circumventing safeguards on the use of such material in the UK.”
However, such safeguards and guarantees are notably absent from the Bill. Furthermore, the independent reviewer’s report described the international trade in intelligence between the “Five Eyes” partners—the UK, the USA, Canada, Australia and New Zealand. In so far as material gathered by the British services is shared with other countries, the report explained that the security services take the view that, under their founding statutes, information should be shared only if it
“is necessary for the purpose of the proper discharge of the security and intelligence agencies’ functions.”
When it is considered that the test is met, certain safeguards apply under the Regulation of Investigatory Powers Act 2000. However, the report concluded that
“in practical terms, the safeguards applying to the use of such data are entirely subject to the discretion of the Secretary of State.”
The 2000 Act and the codes of practice are silent on British services receiving or accessing information from foreign services, with security services limited only by the general constraints placed on their actions by various statutes. It was only during Liberty’s legal action against the security services in the Investigatory Powers Tribunal that limited information was revealed about the way in which the security services approach such situations. In its first finding against the agencies, the IPT held that, prior to these disclosures, the framework for information sharing was not sufficiently foreseeable and was not therefore in accordance with law. The tribunal held that, because the litigation had resulted in disclosures of information, the security services were no longer acting unlawfully when accessing information from the US. Based on the concerns that Amnesty International, Liberty and others have raised, the SNP has tabled amendment 296, which would insert a new subsection into clause 113. The language of the amendment is plain.
Keir Starmer
I have listened carefully to the hon. Gentleman’s comments. On the sharing of information with authorities that may engage in torture or other serious ill-treatment, can the Minister confirm the long-standing practice that our security and intelligence services do not share information where there is a risk of torture, because of their obligations under other international treaties, and that this provision sits within that framework of assurances?
Mr Hayes
I can confirm that, and I can say a little more. My residual generosity is such that I take the view that these amendments are well intentioned, but they are unnecessary. Let me say why.
Clause 113 already provides that the Secretary of State must ensure that satisfactory and equivalent handling arrangements are in place before sharing UK equipment interference material with an overseas authority. The Secretary of State must determine that they provide corresponding satisfactory protections. Furthermore, those obligations sit alongside those in, for example, the consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees, as well as the gateway provisions that allow for intelligence sharing in the Intelligence Services Act 1994 and the Security Service Act 1989.
In addition, the overseas security and justice assistance guidance provides an overarching mechanism that sets out which human rights and international humanitarian law risks should be considered prior to providing justice or security sector assistance. This is supplemented by the draft code of practice on equipment interference, which is clear about the safeguards on the handling of information. It seems to me that the protections, absolutely necessary though they are, are comprehensively dealt with by that variety of means, rendering the amendment unnecessary. I invite the hon. Gentleman to withdraw it.
Gavin Newlands
I thank the Minister for his comments, and I am somewhat reassured, but I still do not understand the Government’s reticence about putting this in the Bill; it is only a sentence that is required. Nevertheless, we are minded to withdraw the amendment at this time. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 113 ordered to stand part of the Bill.
Clause 114
Duty not to make unauthorised disclosures
Keir Starmer
I beg to move amendment 649, in clause 114, page 91, line 42, after “not”, insert “without reasonable excuse”.
The Chair
With this it will be convenient to discuss amendment 650, in clause 114, page 91, line 42, at end insert—
‘(1A) For the purposes of subsection (1), it is in particular a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”.
This amendment adds a “reasonable excuse” defence to the unauthorised disclosure offence in relation to equipment interference warrants.
Keir Starmer
I will deal with these amendments swiftly. They deal with the reasonable excuse defence and are similar to previous amendments. I foreshadow the amendments to clause 116, which essentially relates to the same issue as clause 114. Those amendments are about a public interest defence, which we have also debated already.
My two points remain. The first is the consistency of the reasonable excuse defence. In some clauses it is there and in others it is not, and I cannot see the logic of when it is in and when it is out. Secondly, the Minister has already agreed that there must be a route for those who want to expose wrongdoing, so that disclosures can be made in the public interest where necessary. I have been pursuing those two points, and they are the same for this provision. I do not need to elaborate further.
The Solicitor General (Robert Buckland)
The hon. and learned Gentleman is absolutely right to refer to arguments previously made. For the record, this morning I omitted to pay my own tribute to our sovereign lady on her 90th birthday, and I wish to add it here. I am sure that colleagues will indulge that observation, and hopefully this next observation too. My right hon. Friend the Minister for Security and I agree that the world is divided between cavaliers and roundheads. We know what side we are on: our hearts lie broken on the battlefield of Naseby—but that is perhaps for another day.
We contend that amendment 650 is unnecessary. Clause 115(2)(b) provides that a disclosure is permitted if it is
“authorised by the person to whom the warrant is…addressed”.
Disclosure can also be authorised by virtue of this clause within the terms of the warrant, which will have been agreed by the person issuing the warrant and by a judicial commissioner. It is much better for an impartial senior judge to take a view on what is reasonable than it is for, say, a junior official or an employee of a telecommunications operator, no matter how diligent they might be; none the less, it is important that such people can raise concerns without fear of prosecution. That is why clause 203, in part 8, provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill.
It is right that the Bill’s provisions reflect the sensitive techniques of the equipment interference agencies and maintain that it will be an offence to disclose the existence of a warrant. It is a well known and well rehearsed argument that the techniques and details of EI capabilities must be protected. The amendments in the round seek to achieve something that I submit is already well catered for in the Bill, and on that basis I ask the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 114 ordered to stand part of the Bill.
Clause 115 ordered to stand part of the Bill.
Clause 116
Offence of making unauthorised disclosure
Keir Starmer
I beg to move amendment 496, in clause 116, page 93, line 39, leave out subsection (3) and insert—
“(3) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
The Chair
With this it will be convenient to discuss amendment 297, in clause 116, page 93, line 42, at end insert—
“(3A) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
This amendment would provide a defence to the criminal offence of unauthorised disclosure in relation to a warrant issued under this Part. The offence includes disclosure of the existence and content of a warrant and disclosure of the steps taken to implement a warrant.
Keir Starmer
I have said all that I need to say on the amendment. Members of the Committee will appreciate that the amendment has been tabled for each of the offence provisions for the reasons I set out the first time we encountered it. That was dealt with by the Solicitor General, so I shall say no more about it at this stage.
Gavin Newlands
I will not detain the Committee long. I hear what the hon. and learned Gentleman says and broadly agree with it. I rise merely to point out the differences between the two amendments before us. The SNP’s amendment would insert an additional subsection that adds the additional defence and leaves subsection (3) in, whereas the Labour amendment removes that.
The Solicitor General
I am grateful to the hon. and learned Member for Holborn and St Pancras. We are familiar with the arguments and our response is that the information gateway, which allows people to take concerns directly to the Investigatory Powers Commissioner, caters for the public interest. For that reason I urge him to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 116 ordered to stand part of the Bill.
Clauses 117 and 118 ordered to stand part of the Bill.
Clause 119
Bulk interception warrants
The Chair
With this, it will be convenient to consider new clause 16—Review of Bulk Powers—
“Saving this section, Part 6 shall not come into force until—
(a) the Secretary of State has established an independent review of the operational case for bulk powers contained in sections 119 to 173; and
(b) the review has been published and a copy laid before each House of Parliament.”
Keir Starmer
New clause 16 is in my name and those of my colleagues. We come now to part 6 of the Bill; we are examining bulk warrants for the first time, and it is important that we take some time. Different types of bulk warrant are provided for in the Bill, and chapter 1 of part 6 deals with bulk interception warrants. We need to take time with these, because they are intentionally breathtakingly wide.
I remind members of the Committee that, as is set out in the code of practice, in contrast to targeted interception warrants issued under part 2, a bulk interception warrant instrument
“need not name or describe the interception subject or a set of premises in relation to which the interception is to take place”.
Chapter 1 also does not impose a limit on the number of communications that may be intercepted. For example, if the requirements of the chapter are met
“then the interception of all communications transmitted on a particular route or cable, or carried by a particular CSP, could, in principle, be lawfully authorised.”
That is directly from paragraph 6.2 of the code of practice. It gives a sense of how wide these bulk powers in the Bill are. When one has powers of such breathtaking width, there is a requirement for a high level of justification for their use, and I will come back after making some further preliminary points.
First, despite suggestions over the years that no enormous database would come into existence through the use of what, in truth, were bulk intercept warrants, it is now pretty clear that there is an enormous database, which is growing daily. Secondly, although it is right to say that bulk interception warrants are only authorised for overseas-related communications, the comfort we get from that is much more limited than might first appear. That is because, as the Joint Committee observed,
“given the global nature of the internet, the limitation of the bulk powers to “overseas-related” communications may make little difference in practice to the data that could be gathered under these powers.”
The ISC has confirmed that the Government considers that an “external communication” occurs
“every time a UK based person accesses a website located overseas, posts on a social media site overseas such as Facebook, uses overseas cloud storage or uses an overseas email provider such as Hotmail or Gmail—”
or searches on Google. Any communication that involves those external communications comes within the provisions of a bulk interception warrant. I accept that it cannot be targeted at somebody in this jurisdiction, but as I have said, the comfort that that gives is much more limited than might at first appear when one reads the legislation.
Thirdly, the sheer breadth of these warrants, if they are not carefully constrained, is capable of frustrating any meaningful review of necessity and proportionality. Those tests need to bite on something meaningful when one has a warrant as wide as these bulk warrants are potentially and in practice.
It is right to acknowledge that David Anderson, the ISC and the Royal United Services Institute panel all recommended that bulk powers should be set out in legislation, and they now are. They are avowed. The Bill sets them out and puts a framework of safeguards around them. That is welcome; it is as it should be and in accordance with those recommendations. If the Bill passes, it will increase accountability in relation to the exercise of these warrants, which until now have been exercised under implied powers without the safeguards in the Bill. But—and it is a big “but”—this is the first time that Parliament has had the chance to scrutinise those bulk powers. The argument that they already exist and are already in use is no answer to the need for close scrutiny, because until now the House has not had the chance to scrutinise them.
The first step in scrutiny is to consider the operational case, which sets out the overall need for bulk powers. An operational case was published by the Government alongside the Bill, which is welcome, but it is inadequate. It is a 47-page document and much of it is purely introductory. On average, only five pages are allocated to addressing the capabilities for each bulk power. There are four pages for bulk interception, seven pages for bulk equipment interference, six pages for bulk communications data acquisition, and five pages for bulk personal datasets. Each power is supported by a handful of one-paragraph case studies. We understand that further material has been provided to the ISC, but no formal assessment of that material and no report of the ISC has been made available to the Committee, although of course we heard the comments of the Chair of the ISC on Second Reading. Incidentally, we will be writing to him to ask him to outline the general nature of that material and what formal assessment the ISC made.
The operational case that has been published is inadequate, for the reasons that I have set out, and lacking any independent evaluation, which was a recommendation of the Joint Committee. The Labour party has been pushing for that evaluation from the start of the scrutiny of the Bill; it is why we tabled new clause 16. We say to the Government that it is not too late to carry out the evaluation that has been called for for some time. New clause 16 is not intended to delete clause 119 or to suggest that there could be no justification for bulk intercept warrants, particularly since they have been used. The intention is to put down a marker in saying that part 6 will not come into force until the Secretary of State has established an independent review of the operational case for the powers in clauses119 to 173—that is all the bulk powers, which is why it is a new clause rather than an amendment to clause 119—and the review has been published and before each House.
I want to pick up on some of the specifics of the clause. In clause 119(4)(c) and (d) it is clear that a bulk intercept warrant authorises not just interception but examination within the interception. That is extremely important, because one of the arguments that I have sought to make consistently is that the wider the power to gather, harvest or hoover up communications or data, the greater the need for thresholds and careful safeguards when that material is accessed. Under subsection (4)(c) and (d) the bulk intercept warrant provides not only for the interception of communications but for selection for examination—in other words, it deals with part 2 at the same stage as part 1, so it is important to pay careful regard to the safeguards in place. I will make the argument about safeguards when I get to clause 121, which sets out the necessity of the proportionality test; at this stage I am merely flagging up that we are talking about both the wider power and the access power and reminding the Committee that although there are some protections for the communications of those in the British islands, the protection does not extend to secondary data.
The only other point that I wanted to make at this stage relates to the code of practice, paragraph 6.12:
“Where a bulk interception warrant results in the acquisition of large volumes of communications, the intercepting agency will usually apply a filtering process to discard automatically communications that are unlikely to be of intelligence value.”
We saw last week express provisions for filtering arrangements in other parts of the Bill. As far as I can ascertain, there are no express filtering provisions in relation to bulk intercept warrants. For the record, what does the Minister say the power is for that middle exercise of filtering between the acquisition of the information and accessing it?
To be clear about how I think it is intended that that should work, the code of practice suggests later that what will happen in general, accepting that a huge volume of communications is likely to be affected by a bulk warrant, is that automated systems will be in place. On the scope of what we are talking about, paragraph 6.57 of the code of practice makes it clear:
“More than one operational purpose may be specified on a single bulk warrant; this may, where the necessity and proportionality test is satisfied, include all operational purposes currently in use. In the case of bulk interception, overseas-related communications relevant to multiple operational purposes will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes.”
That makes it clear that under one warrant, there are likely to be numerous operational purposes and a huge amount of data gathered. The idea that there will be one warrant for each operational purpose would be a misunderstanding of how the powers have been and undoubtedly will be used if the Bill is passed. It appears, from paragraph 6.59, that what will then happen is that
“automated systems must, where technically possible, be used to effect the selection in accordance with section 134 of the Act.”
There will be an automated filtering process.
These are very wide powers requiring close scrutiny and high levels of justification. Until there is independent evaluation of an operational case, the clauses should not come into force.
Joanna Cherry (Edinburgh South West) (SNP)
The Scottish National party has tabled leave-out amendments to the entirety of part 6. I sought the assistance of the Committee Clerks, to whom I wish to record my sincere and grateful thanks for their help over the last couple of weeks, on how to approach the amendments. It was suggested that I might press the question on stand part for the first clause of an objectionable part. For example, in chapter 1 of part 6, I could press the question on clause 119 and make my position abundantly clear, which might be a proxy for my objections to the whole part. Are you content for me to proceed in that way, Mr Owen?
Joanna Cherry
To deal with clause 119, I must outline why the Scottish National party wishes the entirety of part 6 to be removed from the Bill until such time as a convincing case has been made for the use of bulk powers and the legality of bulk powers has been determined. In our view, it is important not to pre-empt the terms of court judgments in cases currently considering bulk powers, as they will have a significant impact on the lawfulness of the approach set out in the Bill, which at present must, at the very least, be open to question.
The Government have produced an operational case in response to remarks made by a number of witnesses before the Joint Committee on the Draft Investigatory Powers Bill, who were concerned about the lack of such a case, and to the Joint Committee’s recommendation 23. The Home Office published a 47-page operational case for bulk powers alongside the Bill. That document was produced within three weeks, and the first half of it is introductory, covering topics such as how the internet works and what the dark net is. Only the second half of the document, characterised as an operational case, addresses the capabilities with which we are concerned.
Going goes through the operational case, we can see that each power—bulk interception, bulk equipment interference, bulk communications data acquisition and bulk personal datasets—has an average of about five pages devoted to it. Bulk interception has only about four. Most of the material dealt with is already public in other explanatory documents. It seems that, despite the opportunity to provide concrete, solid examples of how bulk powers bring unique value, most of the material in each section is kept at a high and general level.
For example, the first three pages of the four-page case justifying bulk interception cover an introduction to the power, the current legal position and new safeguards in the Bill. The fourth and final page provides three one-paragraph case studies, which members of the Committee will all have had the opportunity to read. One in particular deals with counter-terrorism, giving an example of where the security and intelligence agencies’ analysis of bulk data uncovered a previously unknown individual in 2014 who was in contact with a Daesh-affiliated extremist in Syria suspected of involvement in attack planning against the west.
The case study says:
“As this individual was based overseas, it is very unlikely that any other intelligence capabilities would have discovered him. Despite his attempts to conceal his activities, the agencies were able to use bulk data to identify that he had recently travelled to a European country. Meanwhile, separate intelligence”—
that is, separated from the bulk-generated intelligence—
“suggested he was progressing with attack planning. The information was then passed by the agencies to the relevant national authorities. They disrupted the terrorists’ plans and several improvised explosive devices were seized.”
Undoubtedly, every hon. Member on the Committee and in the House would wish such activities to be intercepted and prevented by the security services. I applaud the security services for the work that they do, but what concerns me is that analysing this case study in any meaningful way is challenging, because there is inadequate information to begin to test the accuracy of the case study or to challenge its conclusions. Nevertheless, I have had some initial analysis of it carried out, which suggests that perhaps the ends could just as easily have been achieved by the use of targeted interception. I will give a couple of examples to show why.
The case study refers to a previously unknown individual who was in contact with a Daesh-affiliated individual, who presumably was known. It is possible, therefore, that targeted interception may have uncovered this previously unknown individual. Although the Daesh-affiliated individual was already being monitored, there is no clear explanation in the case study of why bulk interception was necessary. It seems likely that intercepting the Daesh-affiliated individual’s contacts in a targeted manner might have identified the previously unknown individual.
That is just one of a number of issues raised about this case study by the analysis that I have had carried out. I will not take up the Committee’s time with them all, but that is one example.
The value that this case study has is that in this case a previously unknown individual was identified. Questions as to why targeted interception would not have worked are not addressed, nor are questions as to why other targeted capabilities were not used. The case study suggests that the initial identification is the only aspect in which bulk interception played a role, with the rest of the case study a result of other capabilities and separate intelligence. No information is provided about the scale of collateral intrusion undertaken when intercepting in bulk and there is no assessment of the proportionality of bulk interception. Also, given that the attack was not in the UK, there is no explanation of the necessity of UK agencies playing a role, although that is perhaps a slightly lesser consideration.
There is no information outside this case study as to the frequency of events of this kind or whether in similar cases different methods produced different results. As such, it is impossible to analyse it and make any kind of independent assessment of the necessity or proportionality of bulk power.
This is not nit-picking. These are very wide-ranging powers. The hon. and learned Member for Holborn and St Pancras, who speaks for the Opposition, described them as breathtakingly wide powers. They have never before been debated or voted on in this Parliament, and it is crucial that we get them right. We are debating and voting on them, at a time and in a climate whereby there is quite a lot of independent evidence available from the United States of America that suggests that bulk powers are not as efficacious as is suggested in the operational case produced by the Government.
I will say a little about what happened in the States, because it is important to loop to that to understand what the Scottish National party says would be the appropriate way to approach the production of an operational case to justify bulk powers.
In the USA, the Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The US intelligence community put forward strong arguments for keeping that programme going, and to bolster its position it compiled a list of 54 counter-terrorism events in which it said that section 215 of the USA Patriot Act, which underlined that bulk collection, contributed to a success story.
In America, two independent bodies undertook reviews related to those powers to determine whether the case studies put forward by the intelligence agencies were credible and accurate. They determined that only 12 of the 54 counter-terrorism events cited by the security services had any relevance to the exercise of bulk powers under section 215 of the USA Patriot Act. With access to classified material, one of the independent groups— the President’s Review Group on Intelligence and Communications Technologies, which is a very high-powered body set up under the auspices of President Obama—concluded:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders”.
The other body, the Privacy and Civil Liberties Oversight Board, concluded very similarly that the programme of bulk collection under section 215 had
“shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
I quote those two bodies because they are independent.
I am aware that Mr William Binney, who previously worked for the National Security Agency, gave evidence to the Joint Committee. His evidence could be summarised as “bulk powers cost lives”. He is concerned about the “needle in a haystack” argument. I am aware from previous discussions that certain members of the Committee have concerns about the evidence of Mr Binney. Even if we set his evidence to one side, we cannot set to one side the evidence of those two very high-level, independent American committees that looked at bulk collection in the USA. Their conclusions seriously question the information they were given by the security services that the bulk powers were necessary to prevent terrorist outrages. They also made suggestions on existing targeted capabilities.
Lucy Frazer (South East Cambridgeshire) (Con)
We have the analysis by David Anderson of the efficiency and efficacy of bulk powers, and he talks from paragraph 7.22 onwards about the importance of bulk powers. For example, he states:
“GCHQ explained that its bulk access capabilities are the critical enabler for the cyber defence of the UK, providing the vast majority of all reporting on cyber threats and the basis for counter-activity.”
Joanna Cherry
I cannot gainsay that. I am well aware that David Anderson would not go as far as I am going in these submissions. He has reached the conclusion that some bulk powers are necessary, but the passage in his report that the hon. and learned Lady quotes basically starts with a phrase along the lines of “GCHQ has assured me”. My point in drawing Members’ attention to what happened in the USA is that, although the US security services compiled a list of 54 counter-terrorism events in which they said bulk powers had contributed to a success story, one of the two committees I have quoted reached the view that it could not identify a single instance where bulk powers had contributed to a counter-terrorism success story. There is a debate to be had here.
Lucy Frazer
David Anderson goes on, in the same section of his report, to acknowledge that it is difficult for the public to take examples on trust. He recognises the limitations of what was shown to him, but states:
“The six outline examples at Annex 9 to this Report go a little way towards remedying that defect. They illustrate the utility of bulk data capabilities more generally”.
He recognises the limitations, but still acknowledges the efficacy of the powers.
Joanna Cherry
The hon. and learned Lady makes a good point. David Anderson acknowledges the efficacy of the powers and has been privy to certain information as he has a high security clearance. Not all of us can be privy to that information. I am suggesting that there should be an independent evidence base for the bulk powers. That would involve independent assessors with high security clearance undertaking forensic examination of the necessity and effectiveness of the bulk programmes.
We know, because the Home Secretary has told us—there was an interesting article about this in The Guardian today—that the bulk powers have been running for a long time. The headline of the article is, “UK spy agencies have collected bulk personal data since 1990s, files show”.
I will come back to that article in a moment, but we know that the bulk powers are operational. Given that they have been running for a while, a full list of cases where they have been required should be easy to provide. That should not be to this Committee, but to an independent review staffed by high-level individuals with the highest security clearance—the sort that David Anderson has. I have in mind such people as retired judges and retired professionals with an interest in the area.
Simon Hoare (North Dorset) (Con)
I do not want to paint this too simplistically—the purpose of the Bill, as I understand it, is to pull together a lot of existing things under one statute—but we all have fire insurance policies on our homes. We do not want to claim on those policies, but it is important to know that they are there in case we need them in an emergency. That is exactly what all these powers are there for. We need to ensure that the kit is there for our agents to use to keep us safe.
Joanna Cherry
These powers are not being used only in emergencies. That is the point. We are told that the powers are being used daily and that those data are being sucked up and collected daily, and the Bill seeks to put that on a legal footing. I am saying that there is not sufficient independently assessed evidence to justify the continuation of such powers and that we need a proper independent review.
I am suggesting that there should be independent, security cleared assessors to consider whether such powers pass the legal tests of necessity and proportionality. They would need to conclude that the powers were strictly necessary and that the same results could not be achieved using more proportionate and less intrusive means. The two American committees I mentioned concluded that the same information could be achieved using more proportionate and less intrusive means, so we in the United Kingdom should not legislate gung-ho for the continuation of such breathtakingly intrusive surveillance powers without being certain that they are necessary and proportionate. We do not have sufficient evidence to reach that conclusion.
Lucy Frazer
What does the hon. and learned Lady think the independent reviewer of terrorism legislation is for, other than to review these powers? He reviewed the powers in his report.
Joanna Cherry
I do not accept that the independent reviewer has carried out the exercise that I am suggesting. He fulfils a particular function, and we are talking about setting up a panel of individuals to consider the necessity and proportionality of these powers. They could consider in detail certain information that we, as hon. Members, would not be able to see. David Anderson is one individual who fulfils an important function and whose work has greatly assisted everyone on the Committee, and all hon. Members, in trying to understand what underlies the Bill.
Suella Fernandes (Fareham) (Con)
The hon. and learned Lady is asking the Committee to attach less weight to David Anderson’s review, as my hon. and learned Friend the Member for South East Cambridgeshire said, and inviting us to prefer the evidence of Mr Binney, a whistleblower whose evidence was clearly out of date, because the last time he was security cleared was 2001.
Joanna Cherry
Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.
I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:
“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”
The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.
Mr Hayes
I know that this will disappoint the Committee, but I shall try to reduce the length of my peroration by making two things clear by way of an intervention. First, David Anderson was clear in evidence to this Committee that further review was not necessary. Actually, I am not unpersuaded by the argument for some process, although the hon. and learned Lady is doing a good job of changing my mind. Secondly, the Joint Committee was extremely clear that we would benefit from the ISC’s conclusions, and the ISC said that the powers are necessary, so I do not understand on which journey the hon. Lady is travelling, or to which destination.
Joanna Cherry
David Anderson said the following in paragraph 1.12 of his report, “A Question of Trust”:
“Though I seek to place the debate in a legal context, it is not part of my role to offer a legal opinion (for example, as to whether the bulk collection of data as practised by GCHQ is proportionate). A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.”
There we have the words of the man himself. Although David Anderson seeks to place the debate in a legal context, he does not see it as part of his role to offer a legal opinion on the proportionality of GCHQ’s bulk collection of data. At least two cases now before the courts will result in judgments on whether the powers are proportionate.
Lucy Frazer
If the hon. and learned Lady reads the next paragraph, she will see that David Anderson is simply making a broad statement about the fact that he is not giving legal advice generally. He is putting forward recommendations for Parliament to consider.
Joanna Cherry
Indeed; he is putting forward recommendations. I am advocating an independent review looking at the operational case for bulk powers. It would look at whether the powers are necessary and proportionate, and it would provide an opinion that could then be laid before both Houses, for us to see if the Government’s case has been made. I am concerned that the case is not sufficient at the moment. I say that against the background not of Mr Binney’s evidence, but of the findings of high-level USA investigatory bodies.
Mr Hayes
I hesitate to advise an advocate on the construction of her argument, but the hon. and learned Lady would do better not to cite David Anderson and pray him in aid, because he told this Committee on 24 March that he was
“not persuaded of the case for”
an additional independent review of bulk powers, as
“it would be very difficult to say that the ISC had not had an independent look at these issues.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 6, Q2.]
The quote from David Anderson that she is using comes from the very beginning of his report, in which he sets out his general approach to his work. In an effort to make her an even more accomplished advocate than she already is, my advice would be to drop Anderson from her argument.
Joanna Cherry
With all due respect, hon. Members sitting behind the Minister brought up David Anderson; I made it clear that I accepted that David Anderson had reached a different view from mine on bulk powers, but I read from his report to make the point that at an early stage in it, he says that it is not his objective to give a legal opinion on the legality of the bulk collection of data.
Those of us who sat through David Anderson’s evidence in Committee on 24 March might also remember that he discussed the different views held about the legality of bulk powers. He said that, ultimately, that will be determined by the courts. The thrust of my argument is that given the serious concerns expressed by two independent United States committees, and the serious concerns about the legality of the powers, we should not be gung-ho about putting them in legislation until we have a proper operational case and have seen the outcome of the litigation. That is a thoroughly respectable approach to part 6, and one that is in accordance with the rule of law.
Simon Hoare
I am not persuaded by the argument that the United Kingdom Parliament should make United Kingdom law based on what some Americans whom we have never met or spoken to have said. The first duty of Her Majesty’s Government and of parliamentarians is surely to help keep our citizens and constituents safe. If we take that as our first point of principle and duty, and if the powers that are to be enshrined in the Act can fulfil that need, either now or in future, I fail to see why the proposals would cause such offence.
Joanna Cherry
I am glad to hear that the hon. Gentleman does not want the Americans to tell the British how to run their affairs. In very much the same way, I do not want the British establishment to tell Scotland how to run its affairs. We can have that argument another day—
Christian Matheson (City of Chester) (Lab)
We have already had that argument.
Joanna Cherry
I think the hon. Gentleman will find that the argument is alive and kicking north of the border, but we digress.
I can reassure the hon. Member for North Dorset that I have no intention of following the United States of America’s security policy. We should devise our own policy in the United Kingdom, so long as it remains the United Kingdom. I am saying that we should set up an independent review body, made up of people from the United Kingdom—not the Americans or French; let us not panic about the French or the Americans telling us what to do. I am suggesting that our own people, if I may use that phrase, should be on the body. I mentioned the American experience to show that our key ally in such matters has, as a result of two very high-level congressional committees, reached the view that bulk powers are not justified. That is my point; it is not that we should do what the Americans tell us to do. I can assure the Committee that that is far from being the position of the Scottish National party. My point is that we should look to the experience in other countries to inform our decision making.
Simon Hoare
The hon. and learned Lady is being customarily generous with her time, and robust in her argument. I do not envy her her position one jot or tittle. If she were saying—without saying it—that she had a fear that spooks out there were doing nasty and horrible things, and that it was our job to try to constrain them, I could understand some of the line of her argument, but I do not think she is saying that. I am therefore not entirely sure, in practical politics, what would be added by the creation of the body she advocates. I am confident that we have security services and others who act within the rule of the law.
Joanna Cherry
I am afraid that the hon. Gentleman’s confidence is somewhat misplaced, given the revelations today in a collection of more than 100 memorandums, forms and policy papers obtained in the course of a legal challenge on the lawfulness of surveillance. An article in The Guardian today says that the papers demonstrate that the collection of bulk data in the United Kingdom
“has been going on for longer than previously disclosed while public knowledge of the process was suppressed for more than 15 years.”
According to the article, The Guardian has surveyed the paperwork, which shows that the
“frequency of warnings to intelligence agency staff about the dangers of trespassing on private records is at odds with ministers’ repeated public reassurances that only terrorists and serious criminals are having their personal details compromised…For example, a newsletter circulated in September 2011 by the Secret Intelligence Agency (SIS), better known as MI6, cautioned against staff misuse.”
That internal newsletter said:
“We’ve seen a few instances recently of individuals crossing the line with their database use…looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal convenience”.
The internal memo goes on to say:
“Another area of concern is the use of the database as a ‘convenient way’ to check the personal details of colleagues when filling out service forms on their behalf. Please remember that every search has the potential to invade the privacy of individuals, including individuals who are not the main subject of your search, so please make sure you always have a business need to conduct that search and that the search is proportionate to the level of intrusion involved.”
It adds that, where possible, it is better to use “less intrusive” means.
The papers also reveal that there has been disciplinary action. The article states:
“Between 2014 and 2016, two MI5 and three MI6 officers were disciplined for mishandling bulk personal data. Last year, it was reported that a member of GCHQ’s staff had been sacked for making unauthorised searches…The papers show that data handling errors remain a problem. Government lawyers have admitted in responses to Privacy International that between 1 June 2014 and 9 February this year, ‘47 instances of non-compliance either with the MI5 closed section 94 handling arrangements or internal guidance or the communications data code of practice were detected.’ Four errors involved ‘necessity and proportionality’ issues; 43 related to mistransposed digits and material that did not relate to the subject of investigation, or duplicated requests…Another MI5 file notes that datasets ‘contain personal data about individuals, the majority of whom are unlikely to be of intelligence or security interest’.”
Simon Hoare
I fear that the hon. and learned Lady may be slightly over-egging this particular pudding. I read the article this morning in The Guardian. She has cited, perfectly properly, the two operatives who were found to be in breach, disciplined and then dismissed. I politely suggest to her that probably quite a lot of the figures that she quoted refer to the fact that agent X could not remember Auntie Doris’s postcode and checked it because he wanted to send her a get well card. It is hardly “Enemy of the State”.
Joanna Cherry
It may not be, but it is an indication of how easy it is for people to abuse the rules, and an indication that the rules are abused. I am not seeking to impugn the security services. I am seeking to draw the attention of members of the Committee and the public to the fact that the rules are sometimes abused. If we are to afford the security services generous and intrusive powers, we have to be sure that they are proportionate and necessary. My point is that we do not have sufficient evidence that they are.
I am conscious that I have taken up quite a bit of time with that submission. I will not take it any further. I have alluded to the fact that there are outstanding legal challenges, and I will make one or two more comments on clause 119. I have already made the point that the clause seeks to put bulk interception programmes that are already in operation on a statutory footing. They were disclosed for the first time by Edward Snowden in June 2013, and their existence has now been avowed by the Government. They have never before been debated or voted on by this Parliament. That is why I am taking my time with this point.
The approach that has been held to date is maintained in the clause. The bulk interception proposed by the clause will result in billions of communications being intercepted each day, without any requirement of suspicion, or even a discernible link to a particular operation or threat. I have information from Liberty that the agencies currently handle 50 billion communications per day. To put that in context, there are only 7 billion people in the world, and only 3 billion of them have access to the internet.
The Intelligence and Security Committee reported at the end of 2014 that there were just 20 warrants in place under section 8(4) of RIPA authorising this vast volume of interception. It is clear from the wording of the clause that although it purports to collect overseas-related communications, it will, for the reasons the hon. and learned Member for Holborn and St Pancras gave, collect the communications of persons who are resident in the United Kingdom. Internet-based communications have eradicated the distinction between external and internal communications. He told us that posts on social media sites overseas, such as Facebook, use overseas cloud storage, so the material there would be covered by clause 119.
Searches on Google are counted as an external communication. I do not know about other hon. Members, but I must do at least a dozen searches on Google per day. Those are external communications, even though I am a citizen of the United Kingdom. Be in no doubt: the handful of warrants that will be issued under this clause will be scooping up billions of communications by the United Kingdom’s citizens. Those communications will then sit somewhere and certain people in the security service will have unwarranted access to them. There are some people who do not respect the rules, as we know from the disclosures in The Guardian today, so there is that concern, as well as the concern about the security of the data. The vast majority of those communications that will be scooped up will be the communications of innocent people.
Byron Davies (Gower) (Con)
Does the hon. and learned Lady not accept that the primary object of the security services is to prevent crime—serious crime—and that is exactly what this measure is doing?
Joanna Cherry
Of course I do, but to give some comfort to the hon. Gentleman, who has a distinguished career in law enforcement behind him, I worked for many years as a senior prosecutor with the Crown Office and Procurator Fiscal Service in Scotland, so I am fully aware of the public duty of the security services and law enforcement agencies to prevent serious crime. However, I am also aware of the duty of parliamentarians to protect their constituents and to ensure that surveillance powers are proportionate and necessary. My point is that the Committee and this House do not have sufficient evidence at present to justify these breathtakingly wide powers, and that is why the Scottish National party wishes that part 6—
Joanna Cherry
I am coming to a conclusion now, so I will let the hon. Gentleman intervene.
Byron Davies
I am grateful to the hon. and learned Lady for taking a further intervention. This is about proactivity and preventing crime. I am afraid I am not persuaded, so far, by what she is saying.
Joanna Cherry
I am sorry the hon. Gentleman is not persuaded, but I think others outside this room will be. It is important that somebody voices these very serious considerations while the Government attempt to railroad this legislation through the House. This is not right, and my party will not hesitate to hold the Government to account for it, not because we are troublemakers, but because we are a constructive Opposition. Having the responsibilities of a constructive Opposition, we have looked at what is happening in other countries and at their experience, and we do not consider that this degree of surveillance of our constituents’ and British citizens’ personal communications has been justified as proportionate and necessary.
We are not saying that the security services should not have any powers. We have a nuanced approach to the Bill. Members of the Scottish National party did not sit on their hands and do nothing on Second Reading; we made a constructive contribution to the debate. However, I will not be dissuaded from holding these very serious concerns. They are not just my concerns; they are widely held, and there is strong evidence from one of our closest allies that they are well founded.
Simon Hoare
Nor should the hon. and learned Lady be doing anything other than what she is. She is fulfilling her role in an exemplary fashion, and I mean that in a sincere and heartfelt way. The one thing I would challenge her on—or ask her to substantiate—is this. We have had Joint Committees and all the other organisations having a look; we had a very thorough debate on Second Reading; we had a full day’s debate on the Anderson report back in July last year; and now we have detailed, line-by-line scrutiny of the Bill, and I think we will have two days on Report. I ask whether she used the word “railroad” in haste, and whether I could invite her to reflect on its use and perhaps recast her comment.
Joanna Cherry
I will not recast it. I gave very detailed reasons on Second Reading as to why I felt that the Bill was not being given sufficient time. I am aware that hon. Members may feel that I have held the floor for too long; I have spoken at some length, but this is hugely important. Many people across these islands are very concerned about this part of the Bill—ordinary citizens, corporate entities—and we are not giving it enough time. There is not enough time to discuss its detail. I have taken up about 40 minutes giving just an overview of why I oppose part 6. I could have a go at every clause, but I will not do that, because we would be here forever and we have limited time, so I will draw my comments to a conclusion. The Scottish National party’s position is that each and every clause of part 6 should come out of the Bill until such time as there has been a proper independent review and a proper operational case has been made for these powers.
Mr Hayes
The hon. and learned Member for Holborn and St Pancras, who speaks for the official Opposition, spoke, not untypically, with welcome brevity and a palpable understanding of these issues, but the hon. and leaned Lady took us on a seemingly interminable journey to a place that is somewhere between intuitive hostility to these powers and confusion—a murky place that I do not want to spent too much time in. Some of the things she said warrant a response, because it seems to me that they were founded on a misunderstanding— I put that as generously as I can—of the use of the powers, their purpose and the safeguards that pertain in that regard.
Let me be clear: a Google search by a person in the UK is not overseas-related. Clause 119 deals with overseas-related communications. Warrants must be targeted at overseas communications. That will provide strong protections for people on these islands.
The ISC privacy and security report concluded that it is unlawful for GCHQ to conduct indiscriminate interception. It is also impractical for it to do so. The hon. and leaned Lady must understand, as most members of this Committee do, that it would be impossible, undesirable and unnecessary for GCHQ to deal with all but a fraction of internet communications. The peculiar view that somehow those missioned to keep us safe are interested in a whole range of communications that bear no relation whatever to their task is—again, I am trying to measure my words carefully—unusual. I say that because it is certainly not the view of the vast majority of people in this country, who want those so missioned to have the powers necessary to guard us against very real threats.
The hon. and leaned Lady spoke, quoting the hon. and learned Member for Holborn and St Pancras, of breathtaking powers. I shall come to that in a moment. She needs to understand that the threats we face are equally—actually, I would say far more—breathtaking. Unless we equip those in the security and intelligence services and the law enforcement agencies with what they need to do their job, we will pay a very dear price indeed. That is what bulk powers are about.
The collection of large volumes of information through bulk powers and the use of those data are essential. Of course they have to be filtered, and search criteria must be applied, so that fragments of intelligence can be gathered and pieced together during the course of an investigation. This is, in essence, about establishing patterns of behaviour and confirming networks. That is what GCHQ is about. Unless we collect those large volumes of information, we cannot move to the targeted regime that the hon. and leaned Lady seeks. Through a mix of misunderstanding and misjudgment, she is making an unhelpful case to those of us who want the safeguards to be as sure and certain as they need to be; I entirely take the point about “need”.
Joanna Cherry
It has been a while since I have been so extensively and excessively patronised. The right hon. Gentleman says I tested his abilities to the limit—to such a limit that he has not made any effort whatever to engage with any of my points about the American experience. Will he or perhaps the Solicitor General deign to do that on a later occasion?
Mr Hayes
I will say this. The Bill has been through an exhaustive process of consideration. The draft Bill was preceded by three reports on the basis of which—the hon. and learned Member for Holborn and St Pancras drew attention to this—the Government have gone further than originally set out, in the terms I described with publication of more information, explanation of the operational case and amendments to the codes of practice. The Bill was considered by three Committees of this House and I have referred to the Joint Committee’s views on bulk powers.
This Committee is now considering the Bill following publication in its final form on Second Reading. In the Second Reading debate the Chairman of the Intelligence and Security Committee, a senior Member of this House who chairs a very important Committee, said that he was convinced that these powers were necessary. The hon. and learned Member for Holborn and St Pancras has argued for perhaps going further on the operational case.
Mr Hayes
I will just finish my sentence. I do not think anyone can say there has not been adequate debate about bulk powers. Before I give way to my hon. Friend and then the hon. Lady—I do not wish to put a further spoke in her wheel, or perhaps I do—I want to say that the US National Academy of Sciences could not identify any alternative that is appropriate to bulk powers.
Simon Hoare
I just want to put it on the record that I am sure my right hon. Friend shares my view that if the former Attorney General, our right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who chairs the Committee to which the Minister referred, had not been convinced, he would have had no problem whatever in telling the Government and anyone who wanted to listen that he was not convinced. Our right hon. Friend is not a patsy in this matter or a yea-sayer. If he disagreed, he would have told us.
Mr Hayes
Let me quote our right hon. and learned Friend. He said:
“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]
He said that on the basis of the information provided to him, but in the knowledge that robust safeguards will govern the examination of data that have been collected in bulk and that it will be possible to select such data for examination only when it is necessary and proportionate for a specific operational purpose. What is happening in other places is, of course, of interest to us and of course we consider other jurisdictions, but my job is to listen to those who have examined the Bill with considerable diligence and in considerable detail, and to be guided by their conclusions.
In that spirit and with that purpose, I hope that we can move on to the next clause, having been persuaded, I hope, that what the Government are doing is perfectly reasonable.
Joanna Cherry
That Minister said a little while ago that Google searches were not external to the UK. I think that is what he said. I am looking at a report of what Charles Farr told the Government in June 2014, which is in a report that we can all access on the BBC website. He said:
“UK intelligence service GCHQ can legally snoop on British use of Google, Facebook and web-based email without specific warrants because the firms are based abroad, the government has said. Classed as ‘external communications’, such activity can be covered by a broad warrant and intercepted without extra clearance, spy boss Charles Farr said.”
Forgive me, but “spy boss” is BBC language. Charles Farr’s correct title was director general of the Office for Security and Counter Terrorism. He told Privacy International that
“Facebook, Twitter, YouTube and web searches on Google—“
The Chair
Order. This is an intervention. We have noted the source. I call the Minister to respond.
Mr Hayes
I see now my mission; it has come to me in a flash. Part of my job is to clear the murk surrounding the hon. and learned Lady and guide her to the light. To that end, she needs to understand that there is a distinction between the position under the Regulation of Investigatory Powers Act 2000 and the definition of overseas-related warrants relating to bulk powers in the Bill. To quote what Charles Farr, with whom I worked at the Home Office, said about one does not really relate to the other. I hope we can move forward on our journey to the light.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 651, in clause 121, page 98, line 9, leave out subsection (2)(b).
The Chair
With this it will be convenient to discuss the following:
Amendment 652, in clause 121, page 98, line 12, leave out subsection (3).
Amendment 653, in clause 121, page 98, line 26, at end insert—
‘(7) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 119(4)(c) or (d), a bulk interception warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is necessary—
(a) for a purpose under subsection (8), and
(b) it is necessary to obtain the data—
(i) for a specific investigation or a specific operation, or
(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.
(8) The paragraph 7(a) purposes are—
(a) the interests of national security,
(b) preventing or detecting serious crime or preventing serious disorder,
(c) the interests of public safety,
(d) protecting public health,
(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,
(f) assisting investigations into alleged miscarriages of justice,
(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—
(i) to assist in identifying P, or
(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or
(h) exercising functions relating to—
(i) the regulation of financial services and markets, or
(ii) financial stability.’.
Amendment 674, in clause 138, page 110, line 1, leave out subsection (b).
Amendment 675, in clause 138, page 110, line 4, leave out subsection (3).
Amendment 676, in clause 138, page 110, line 46, at end insert—
‘(11) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 138(7)(b) or (c), a bulk acquisition warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is—
(a) necessary for a purpose within subsection (12), or
(b) that it is necessary to obtain the data—
(i) for the purposes of a specific investigation or a specific operation, or
(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.
(12) A paragraph 11(a) purpose is—
(a) the interests of national security,
(b) preventing or detecting serious crime or of preventing serious disorder,
(c) the interests of public safety,
(d) protecting public health,
(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,
(f) assisting investigations into alleged miscarriages of justice,
(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—
(i) to assist in identifying P, or
(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or
(h) exercising functions relating to—
(i) the regulation of financial services and markets, or
(ii) financial stability.’.
Keir Starmer
We spent some time on clause 119, but it was right to take time on that important provision. We now move to the safeguards. I listened very carefully to what the Minister said a moment ago and to the observations of the hon. and learned Member for Edinburgh South West. As we move forward, there needs to be some clarity on the basis.
In essence, our position is not to seek to reduce the capabilities of the security and intelligence services, which of course currently operate the powers in question under other authorisations. We seek to ensure that there is proper justification for bulk powers—hence new clause 16, which we will vote on at the end, which would delay the provisions from coming into force until an independent evaluation has taken place. I speak only for my party in saying that there is no intention to reduce the capabilities of the security and intelligence services. I am not suggesting for a moment that there is any intention to do that on anybody else’s behalf, but I am simply making my position clear. I am not speaking for anybody else, because I should not.
Joanna Cherry
Does the hon. and learned Gentleman agree that the SNP proposal to put the powers to one side while an operational case is produced would not reduce the security services’ powers for the time being, pending the outcome of the court cases? They are already operating them, as we have heard, under section 8(4) of RIPA.
Keir Starmer
The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.
The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.
What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.
Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider
“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data”
and then that
“the warrant is necessary…in the interests of national security,”
or on
“grounds falling within subsection (2)”
Subsection (2) adds that the warrant can be
“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.
I will not test the Committee’s patience by going over the same ground about the economic wellbeing of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.
It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that
“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.
On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves
“a purpose for which…examination…under the warrant is or may be necessary”,
which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider
“each of the specified operational purposes”.
However, in clause 125(4), we get into a circular argument. It states:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,
the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or, “It is in our economic interests.” That is not enough,
“but the purposes may still be general purposes.”
That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.
In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:
“Each application, a copy of which must be retained by the applicant, should contain the following information:
Background to the operation in question:
Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…
Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…
The operational purposes for which the content and secondary data may be selected”.
What is envisaged in the code includes:
“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary”
under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:
“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”
So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).
The Solicitor General
I have been considering the hon. and learned Gentleman’s point about clause 125. Let me reassure him that the purpose of subsection (4) is to create, in the modern phrase, a greater granularity of approach when it comes to the basis of the application. That provision is in the Bill to prevent the authorities from just relying on generalities; the point is for them to go into greater specificity. I hope that gives the hon. and learned Gentleman some reassurance.
Keir Starmer
I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.
Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.
Mr Hayes
The spirit that the hon. and learned Gentleman describes is right. It is important that we specify the reasons for the use of these powers, as well as looking at specific operational cases in the way he set out in an earlier debate. The difference between us boils down to this: should that requirement be in the Bill or in the codes of practice? He has drawn attention to codes of practice, which are clear. He might also want to take a look at the operational case for bulk powers, paragraph 6.13 of which gives examples of operational purposes. They might include counter-terrorism operations to detect and disrupt threats to the UK, counter-terrorism operations to detect and disrupt threats overseas, cyber-defence operations, serious crime, security of agencies’ and allies’ operational capability, or security assurance to provide security awareness to the Government, members of the armed forces, Departments and so on. Therefore, there is more detail about what the purposes might be and why these powers are necessary. The hon. and learned Gentleman is right to say that there is more coverage of that in the draft codes of practice, so the discussion we are having is not about the spirit—I think he is right about that, as I said—but about where the details should be specified.
Keir Starmer
I listened carefully to what the Minister said. In the end, this comes back to a debate we have touched on a number of times in this Committee. I hope we have been clear and consistent in the view that safeguards should be set out in the Bill. The code of practice is the proper place for the detailed implementation and guidance on those safeguards. Therefore, for the same reason as in our previous debate, I wish to press the amendment to a vote.
Mr Hayes
Before the hon. and learned Gentleman does so, I might be able to dissuade him. I am not against what he said as a principle. Of course, it has to be gauged on a part-by-part basis, but the principle he has just outlined seems pretty persuasive to me. I will talk about it with my colleagues and my officials. He makes an interesting distinction between safeguards and other technical matters of the kind Anderson describes, and I am not unpersuaded by that.
Keir Starmer
I am grateful for that intervention, which was persuasive. Rather than pressing the amendment to a vote that I am not confident we would carry, I would rather continue dialogue that may lead to a changed approach, in whatever form, to how safeguards are dealt with in the Bill and the codes. I will say no more than that. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 661, in clause 122, page 98, line 44, at end insert—
‘(4) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an information sharing treaty”.
I am sure it will be to the relief of many Committee members if I indicate that I anticipate that we will now move at greater speed, because each of the bulk powers sits within a framework of safeguards that is similar throughout the Bill. The amendment deals with warrants affecting overseas operators. We have rehearsed the arguments either way on more than one occasion, so I do not intend to repeat them.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 662, in clause 123, page 99, line 3, leave out
“review the Secretary of State’s conclusions as to the following matters”
and insert “determine”.
The Chair
With this it will be convenient to discuss the following:
Amendment 663, in clause 123, page 99, line 18, leave out subsection (2).
Amendment 531, in clause 123, page 99, line 19, at end insert
“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.
This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.
Amendment 677, in clause 139, page 111, line 3, leave out
“review the Secretary of State’s conclusions as to the following matters”
and insert “determine”.
Amendment 678, in clause 139, page 111, line 15, leave out subsection (2).
Amendment 532, in clause 139, page 111, line 16, at end insert
“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.
This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.
Amendment 533, in clause 157, page 123, line 16, at end insert
“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.
This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.
Keir Starmer
The amendments are in a familiar form as they are the same as the amendments I have tabled for all the clauses that deal with the approval of warrants by judicial commissioners. The arguments are the same so I shall not rehearse them, save to say that we are moving to a different kind of warrant—a bulk warrant—and where the power is now avowed and the safeguards are being put in place, it is particularly important that the judicial commissioners’ scrutiny is tight. The amendments would provide that tight scrutiny.
Nevertheless, I am not going to persuade anybody who is yet unpersuaded by repeating the arguments. They are essentially the same and they have been consistent throughout the Bill. If there is to be any change on the judicial test, it needs to be consistent throughout the Bill, one way or another.
Mr Hayes
We have had this debate before. It is essentially about the authorisation process, the role of the judicial commissioner and the basis on which the judicial commissioner exercises judgment. Should we make further progress on reaching a synthesis on that matter, it will apply across the Bill, as the hon. and learned Gentleman has said. On that basis, I have nothing more to add.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 664, in clause 125, page 99, line 42, leave out
“but the purposes may still be general purposes”
and insert
“and any specification must be described in as much detail as is reasonably practicable”.
The Chair
With this it will be convenient to discuss amendment 665, in clause 125, page 100, line 1, leave out “may” and insert “must”.
Keir Starmer
Amendment 664 is very simple and straightforward. In the light of our exchange, I would simply like to put it on the table, as it were, to show the spirit in which it has been introduced. I will not press it to a vote, because this is a matter that we may be able to discuss further.
The Solicitor General
The hon. and learned Gentleman remembers the intervention I made earlier to help short-circuit it. We think it conveys that granularity, but we are prepared to engage in ongoing dialogue on that issue. I am grateful to him.
Amendment 665 would require that bulk interception warrants “must” specify all operational purposes. In the Government’s drafting, the word is “may”. I am sympathetic to the amendment, but I do not think it is necessary. The purpose of the clause is simply to clarify that a bulk interception warrant may include multiple operational purposes. That is necessary because overseas-related communications, which are relevant to multiple operational purposes, will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes in use at a particular time. I submit that the Bill is sufficiently clear on that point without the amendment. On that basis, I invite the hon. and leaned Gentleman to withdraw it.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 666, in clause 126, page 100, line 11, leave out “6” and insert “1”.
The Chair
With this it will be convenient to discuss amendment 684, in clause 142, page 112, line 7, leave out “6” and insert “1”.
Keir Starmer
I will not take time with this amendment. We have been round the block with durational warrants on more than one occasion. It is the same issue of whether the warrants should run for six months or a shorter period. I have made my position clear, as, in fairness, have the Government. I do not intend to press the amendment to a vote.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Hayes
I beg to move amendment 610, in clause 128, page 101, line 24, after “requires” insert “(to the extent that it did so previously)”.
This amendment makes a minor drafting clarification (to address the case where, before its modification by virtue of clause 128(2)(b), a bulk interception warrant authorised or required only one of the activities mentioned in that provision).
This is a technical amendment; it is self-explanatory. Obviously, if any colleague wants me to explain it, I will, but I think that for the sake of brevity I will leave it at that.
Amendment 610 agreed to.
Keir Starmer
I beg to move amendment 667, in clause 128, page 101, line 39, at end insert—
“(c) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.”
The Chair
With this, it will be convenient to discuss the following: amendment 668, in clause 128, page 102, line 5, at end insert—
‘(7A) A minor modification—
(a) may be made only if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b)).
(b) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.
(7B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.”
Amendment 669, in clause 128, page 102, line 5, at end insert—
‘(7C) In a case where any modification is sought under this section to which section [NC2 Items subject to legal privilege] or section [NC11 Confidential and privileged material] applies, section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it)”.
Amendment 670, in clause 128, page 102, line 29, at end insert—
‘(14) Any modification which constitutes the adding or varying of any matter must be approved by a Judicial Commissioner in accordance with section 123.”
Amendment 685, in clause 144, page 113, line 32, at end insert—
“(c) may only be made if the Secretary of State considers that it is proportionate to the purposes specified in the warrant.”
Amendment 686, in clause 144, page 114, line 1, at beginning insert—
‘(8A) A minor modification may only be made—
(a) if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b)).
(b) if the Secretary of State considers that it is proportionate to the purposes specified in the warrant.
(8B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.
(8C) In a case where any modification is sought under this section to which section [NC2 Items subject to legal privilege] or section [NC11 Confidential and privileged material] applies, section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it).”
Amendment 525, in clause 144, page 114, line 19, at end insert—
‘(13) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 139.”
This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.
Amendment 526, in clause 164, page 128, line 10, at end insert—
‘(14) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 157.”
This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.
Keir Starmer
These are familiar amendments to the familiar modification clause, which is similar to the other modification clauses. They are intended to serve the same purpose, which is to clarify, tighten, better define and regulate the modification process.
In light of the ongoing discussions about modifications in general, I take it that all the modification provisions come within the same further consideration that I know the Government are giving to modifications, and I will not say anything more about it. However, I cannot resist saying that subsection (6) perhaps gives an example of how one could achieve approval by judicial commissioners of all major modifications.
It is interesting that subsection (6) is markedly different to the provision in clause 30. In other words, some thought has been given by whoever drafted clause 128 to how one gets major modifications back through the judicial commissioner, but that was not a technique deployed in clause 30. I simply point that out because it perhaps gives further strength to my argument that that is the correct way of dealing with these modifications, not only in this clause but in all clauses, and to similar effect. However, as I have said, we have rehearsed these discussions and I will not add to them on modification.
The Solicitor General
I listened to the hon. and learned Gentleman’s last point with interest. He is right about our general approach to this area. What I would say in response to his proper analysis is that I think there are some technical deficiencies in the wording of amendments 667 and 685. I am just concerned that there is a lack of clarity, but that is part of what is ongoing. On that basis, I hear what he says and I am grateful to him.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chair
With this it will be convenient to discuss the Government amendments 612, 617, 618, 622 and 623.
Mr Hayes
The amendments relate to major modifications to bulk interception, acquisition and equipment interference warrants, to add or vary operational purposes. In essence, they provide clarity, enabling an instrument making a major modification to a bulk warrant to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it. For example, the Secretary of State might be out of the country, working elsewhere or otherwise unavailable. Such a modification, however, must be personally and expressly authorised by the Secretary of State before the senior official may sign the instrument. We are talking about a practicality, rather than a difference of emphasis or authority. The amendment replicates accepted and understood language used in the Regulation of Investigatory Powers Act 2000. Hon. Members will understand that there may be occasions when the Secretary of State cannot actually sign the warrant and will delegate that to a senior official.
Keir Starmer
I do not stand in the way of the amendment, which I fully understand. To be clear, I think that the Minister said that the provision only applies when the Secretary of State has authorised the modification, but for whatever reason cannot actually sign it—being out of the country is an obvious example. Since the modification clauses may receive further attention, this may be dealt with anyway, but in the amendment I cannot see the provision that makes it clear that the Secretary of State will have authorised it, but that is probably my shortcoming rather than anything else. I understand the scheme and how it is supposed to work.
Keir Starmer
I am grateful. It is simply because I think we are in the territory where a senior official can make the modification, and therefore—
Keir Starmer
That answers the point and I will say no more about it.
Amendment 611 agreed to.
Amendment made: 612, in clause 128, page 102, line 17, leave out from beginning to “the” in line 22 and insert—
“( ) If it is not reasonably practicable for an instrument making a major modification to be signed by the Secretary of State, the instrument may be signed by a senior official designated by the Secretary of State for that purpose.
( ) In such a case, the instrument making the modification must contain a statement that—
(a) it is not reasonably practicable for the instrument to be signed by the Secretary of State, and
(b) ”.—(Mr John Hayes.)
This amendment enables an instrument making a major modification of a bulk interception warrant to be signed by a senior official in any case where it is not reasonably practicable for the Secretary of State to sign it.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I beg to move amendment 671, in clause 129, page 102, line 41, leave out
“ending with the fifth working day after the day on which”
and insert “of 48 hours after”.
The Chair
With this it will be convenient to discuss amendment 672, in clause 129, page 102, line 41, leave out
“ending with the fifth working day after the day on which”
and insert “of 24 hours after”.
Keir Starmer
Again, this is familiar territory. The clause deals with the approval of major modifications in urgent cases and we quarrel over the time that should be allowed for the steps to be taken. We advanced the same arguments earlier today and they have not changed— nor, I think, will the outcome. We advance the principle that five days is too long and it should be a shorter period. The Government do not accept that principle. We advance the same argument about this safeguard as we do throughout about the basket of safeguards.
The Solicitor General
As the hon. and learned Gentleman’s arguments are the same, my arguments, as he anticipates, are the same. Bearing in mind the sensitive nature of these matters, we do not want decisions to be rushed and, accordingly, we resist the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 520, in clause 131, page 104, line 9, at end insert—
“(3B) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
This amendment would exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.
The Chair
With this it will be convenient to discuss the following:
Amendment 521, in clause 147, page 115, line 39, at end insert—
“(3B) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
This amendment would exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.
Amendment 524, in clause 167, page 129, line 39, at end insert—
“(3b) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”
This amendment excludes the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.
Keir Starmer
These amendments deal with the implementation of warrants. The implementation scheme is similar to that for other warrants. The amendments, as with previous similar amendments, have been tabled to restrict the arrangements because of concerns raised by those who may be required to assist in the implementation of warrants. As the Committee will have observed, the amendments are of same type and species as those previously discussed in relation to implementation of warrants and, again, I will not repeat the arguments about them.
Mr Hayes
The Bill maintains the existing position in relation to extraterritorial jurisdiction and the obligations that apply to overseas companies. I have said before and I happily repeat that it is right that companies providing communications services to customers in the UK should comply with UK law. That remains our position. On that basis, I resist the amendments and invite their withdrawal.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 528, in clause 131, page 104, line 23, at end insert—
“(7) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”
This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.
The Chair
With this it will be convenient to discuss the following:
Amendment 529, in clause 147, page 116, line 6, at end insert—
“(6) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”
This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.
Amendment 530, in clause 167, page 130, line 12, at end insert—
“(7) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”
This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.
Keir Starmer
These amendments are of the same type and advanced for the same reason.
The Solicitor General
Again, we note that the amendments are similar to previous amendments. We still say that they are unnecessary. The clauses already provide safeguards so that any bulk warrant may be implemented only to the extent required for the purpose for which the warrant was issued. For example, in relation to bulk interception in clause 119(4) and (5), a warrant may only authorise conduct that is described in the warrant or conduct that
“it is necessary to undertake in order to do what is expressly authorised or required by the warrant”.
That clearly sets out the scope of the authorised conduct. Well intentioned though the amendments are, we submit that they are unnecessary.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Mr Hayes
I beg to move amendment 613, in clause 134, page 106, line 31, leave out “any selection” and insert “the selection of any”
This amendment makes a minor drafting correction.
This is a minor drafting correction to the clause. It is self-explanatory.
Amendment 613 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I beg to move amendment 504, in clause 135, page 108, line 12, after “items”, insert “presumptively”.
The Chair
With this it will be convenient to discuss the following:
Amendment 505, in clause 135, page 108, line 14, at end insert “and
(c) where paragraph (b)(i) applies, compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require the selection for examination of those items.”
Amendment 509, in clause 135, page 108, line 22, leave out from “privilege” to end of line 25
Amendment 510, in clause 135, page 108, line 26, after “item”, insert “presumptively”.
Amendment 511, in clause 136, page 108, line 40, at end insert—
‘(3) Section 25 (items subject to legal privilege) applies in relation to an application for a bulk interception warrant as it applies in relation to an application for a targeted interception warrant.”
Amendment 512, in clause 171, page 133, line 38, after “items”, insert “presumptively”
Amendment 513, in clause 171, page 133, line 40, at end insert “and
(c) where paragraph (b)(i) applies, compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require the selection for examination of those items.”
Amendment 517, in clause 171, page 134, line 2, leave out from “privilege” to end of line 5
Amendment 518, in clause 171, page 134, line 6, after “item”, insert “presumptively”
Amendment 519, in clause 172, page 134, line 17, at end insert—
‘(2) Section 100 (items subject to legal privilege) applies in relation to an application for a bulk equipment interference warrant as it applies in relation to an application for a targeted equipment interference.”
Keir Starmer
These provisions deal with legal privilege, which we have dealt with on a number of occasions. I will not repeat the points I have made, but one concern I had about the previous clauses that dealt with legal privilege, among others, was that they distinguished between a situation in which the purpose was to obtain the legally privileged material and a situation in which the relevant communication likely to be included was subject to legal privilege. In other words, there was a situation in which the legally privileged material was deliberately targeted and a situation in which there was no intention deliberately to target legally privileged material, but it was accepted that what was targeted was likely to include such material.
In clause 25, the first time we looked at the matter, the distinction was important because the higher test in the Bill—exceptional and compelling circumstances—applied only to the situation in which legally privileged material was purposely targeted, and that test did not apply where it was not being targeted, but it might none the less be picked up because the items targeted would be likely to include material subject to legal privilege. I was uncomfortable with that distinction and I made my submissions at the time.
Curiously—this is understandable; it is not a criticism of different drafting hands in different parts of the Bill—when we get to clause 135, we have a version of the legal privilege provision that sets out in subsection (1)(b)(i) and (ii) both the purpose being to intercept or to obtain legally privileged material and the situation in which the use of the relevant criteria is likely to identify such items, so it sweeps up the targeted and the incidental, and then subjects both to the higher test.
For all the reasons I have set out, I do not think even that is enough, but when the Solicitor General looks again at all the provisions on legal privilege, I ask him to note that there is not even consistency through the statute, perhaps because it was differently drafted at different times. I cannot work out why under clause 25 incidental legally privileged material is not subject to the special test, but under clause 135 it is. I want to put that on the table and invite the Solicitor General to bear it in mind if he gives further consideration to how legally privileged material will be dealt with consistently through the Bill.
The Solicitor General
I thank the hon. and learned Gentleman for his remarks. First, we have the exceptional and compelling circumstances test in subsection (3)(b), which is consistent. Also, I think there is a slight misunderstanding about what we are dealing with, because the amendments seem to be predicated on the basis that targeted interception and equipment interference and then their bulk equivalents can be directly equated, but they cannot.
We have safeguards in place that we would say are strong. We are having a debate about that; I entirely concede that point. We are having a debate about items subject to legal profession privileges in circumstances where content collected under a bulk interception or equipment interference warrant is being selected for examination. That is the key stage. Before that, we are dealing with the stage of acquisition, not examination.
Keir Starmer
I am not sure that the Solicitor General is right; if he is, I apologise. This is a safeguard for a bulk warrant that allows for both gathering and access. In other words, the whole point—I go back to the beginning of part 6 of the Bill—is for a scheme that provides for the obtaining of interceptions on a bulk basis and their examination. They are dealt with in part 6. The warrants that are referred to would include an examination warrant.
The Solicitor General
May I correct myself? The hon. and learned Gentleman is right. I think I used the word “acquisition”. What I meant is that we are talking about when content collected under the terms of part 6, through an interception or equipment interference warrant, is being selected. The stage point about selection for examination is still important.
When content is being selected for examination for the purpose of identifying items subject to legal privilege, or selections such as under the distinction that we have discussed, clause 135, relating to the bulk interception provisions, is the relevant clause, together with clause 171, which deals with equipment interference provisions. That action requires approval from a senior official in the warrant granting department, only on the basis that they are satisfied that there are specific safeguards in place for the handling, retention, use and destruction of items that are subject to legal privilege. In addition, in circumstances when selection for examination is taking place for the purpose of identifying items subject to legal privilege, the senior official must be satisfied that the exceptional and compelling circumstances test that we have discussed is applicable. Furthermore, when an item that is subject to legal privilege is intercepted under a bulk interception warrant and is then retained following its examination, the investigatory powers commissioner must be informed of course.
My point about collection, and I think the hon. and learned Gentleman gets it, is that meaningful safeguards must be applied at that key point, because one does not know what one is getting. That is the wording, and that is why there is that difference in clause 135.
Keir Starmer
I intervene only to say that I accept that it is a necessary evil of bulk powers that otherwise protected information will come within the bulk power at the point of retention, for want of a better word. Safeguards for MPs, for journalists and their sources, for constituents and for clients bite at the later examination or access point.
The Solicitor General
I am extremely grateful to the hon. and learned Gentleman. A lot of the material that is collected will never be examined. The key point is the next stage.
Briefly, the other amendments relate to the arguments about legal professional privilege, and the question whether there are circumstances in which material would not be covered by the iniquity exemption but would be of interest. We have discussed that point before, and I draw my remarks to a close on the same terms that we have discussed previously.
Keir Starmer
In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Eleventh sitting)
Tuesday 26th April 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 8 / Noes: 2 - Question accordingly agreed to.
The Chair
Before we start, I advise Members wishing to table amendments for consideration during next week’s sittings to do so by rise of House on Thursday. Before we get into business, I would also like to welcome Sir Simon Burns to the Committee. He has been a good egg and stepped in for the hon. Member for North Dorset (Simon Hoare), who unfortunately is poorly.
Clause 138
Power to issue bulk acquisition warrants
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 673, in clause 138, page 109, line 30, leave out paragraph (c) and insert—
“(c) the Secretary of State considers the requirements of section 141 are met by the warrant,”.
The Chair
With this it will be convenient to discuss amendment 688, in clause 156, page 122, line 17, leave out paragraph (d) and insert—
“(d) the Secretary of State considers the requirements of section 161 are met by the warrant,”.
Keir Starmer
It is a pleasure to continue to serve under your chairmanship, Ms Dorries. I, too, welcome the right hon. Member for Chelmsford and thank him for helping the Committee with its work.
We turn to clause 138, which deals with the second of the bulk warrants that we are discussing, the bulk acquisition warrants. I will start where I started with the last bulk power by observing the breathtakingly broad nature of this one. The communications data that can be subject to a bulk warrant are the what, where and how of a communication without disclosure of the content, as well as a person’s location, the type of equipment used and the duration of its use. The data can therefore paint a detailed picture of somebody’s life, so accessing it is a significant interference with privacy.
Clause 138 involves the bulk acquisition power that was first avowed in November last year, only about six months ago, making it one of the more recent avowals. At the time, David Anderson told the BBC that
“the law was so broad and the information was so slight that nobody knew it was happening”,
adding that it was
“so vague that anything could be done under it”.
David Anderson and others are concerned about the breadth of the power. For that reason among others, I repeat the call for more work on the operational case. I will not go over the points I made last Thursday in your absence, Ms Dorries, but where a newly avowed power is as broad as this one, the need for an operational case is heightened.
The power is not limited to those overseas, which is a material difference from the bulk power that we considered at the tail end of last week. If there is to be such a bulk power, the safeguards are extremely important, but here we run straight into the same problem as we did with the last bulk power: although clause 138 includes a necessity and proportionality test, it bites on very broad objectives. In clause 138(1)(a), we see that the Secretary of State can issue a bulk warrant if she
“considers that the warrant is necessary—
(i) in the interests of national security, or”,
under subsection (2),
“(a) for the purpose of preventing or detecting serious crime, or
(b) in the interests of the economic well-being of the United Kingdom”.
The same very broad powers apply to the issuing of a very wide bulk warrant.
Last time we considered bulk powers, I was able to go to the code of practice, which gave more detail about the necessity and proportionality test. In this case, paragraph 4.5 of the code of practice does not add much to what is on the face of the Bill. The Government might want to consider whether necessity and proportionality are dealt with consistently in the codes for each of the bulk powers. There is more detail in paragraphs 9.3 and 9.7, the latter of which is telling:
“More than one operational purpose may be specified on a single bulk warrant; this may, where the necessity and proportionality test is satisfied, include all operational purposes currently in use. In the case of bulk acquisition, BCD relevant to a number of operational purposes may be acquired on a single warrant. In the majority of cases, it will therefore be necessary for bulk acquisition warrants to specify the full list of operational purposes.”
This is another case where, in truth, few warrants will cover many operational purposes, yet the constraints of clause 138 are simply by reference to the interests of national security, to preventing or detecting serious crime and to the interests of economic wellbeing so far as they touch on the interests of national security.
I repeat and reassert the points made on the previous bulk warrant measure. Lifting some of the more detailed analysis of the safeguard and test from the code into the Bill is required to make clause 138 meaningful. That is made good in clause 141, which states:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 138(1)(a) or (2), but the purposes may still be general purposes.”
The other point made about this warrant is that it applies not only to the retention or obtaining of data but to the examination of those data. I repeat the point I made last week about the Tom Watson and David Davis case, which is currently being heard. The question in that case is whether there are specific safeguards for access when data are retained, and the proposition accepted by the divisional court is that the safeguard should be for serious crime and that there should be a degree of judicial oversight. The Court of Appeal will now form its own view on that, but the Bill’s safeguard for examination is without any teeth, because the test for examination is the test of necessity, as set out in clause 138, coupled with the test of clause 141, which says that simply citing the national interest, preventing crime, et cetera, is not enough, but that general purposes may be sufficient.
Clause 151—I am skipping beyond clause 138, but one has to see these three things together—is shorter than clauses in other parts of the Bill that address bulk powers, and it simply sets out:
“For the purposes of section 150 the requirements of this section are met in relation to the communications…obtained under a warrant if any selection…is carried out…for the specified purposes…and the selection…is necessary and proportionate in all the circumstances.”
Those purposes relate back to clause 141, which says that, although someone seeking a warrant cannot get away with simply citing national security and serious crime, they do not have to go much further. On analysis, the test for examining for selection data that have been obtained under this wide bulk power is, in fact, a necessity and proportionality test that is no different from the test applied to the holding of the data in the first place. In other words, there is no differentiation between the test for holding, retaining or acquiring the data and the test for examining it at some later stage. I made that point last week, and it arises again in relation to this very wide bulk power.
The only other thing I will say at this preliminary stage is that I think I am right in saying that, in relation to this bulk warrant, there are no specific provisions for legal professional privilege, for the correspondence of MPs or for journalistic material. That has cropped up in our previous discussions and I think the Solicitor General is giving further consideration to whether, in some circumstances, the fact that there is a communication with a lawyer, even though the content is not there, may need at least some reconsideration in terms of how it is dealt with in the Bill.
Therefore, I will not go into long submissions on legal professional privilege, but it is essentially the same point, namely the assumption that if it is not pure content no privilege attaches and no concerns arise may be misplaced. I have asked the Solicitor General and the Security Minister, to take this point under the umbrella of consideration when he looks again at legal professional privilege.
Against that background, the amendments really speak for themselves. They are tightening amendments intended to sharpen the test in clause 138, which, as I say, at the moment is breathtakingly wide.
The Minister for Security (Mr John Hayes)
I again welcome you to the Chair, Ms Dorries.
I will start by saying that it is vital that the whole Committee understands two points—I think it does, but I will amplify them for the sake of the record. The first is that access to communications data is vital to securing our safety. Communications data play a critical role in almost all the major investigations in respect of terrorism and a very large part in the work of the law enforcement, security and intelligence services. That much is a given.
The second point is that the powers in the clause are not new; they are routinely used for the purposes that I have described. When you were last in the Chair, Ms Dorries, the shadow Minister said:
“As the Minister has said, it is a good thing that the powers that had previously been exercised by the security and intelligence services are now avowed on the face of the Bill.”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 92.]
He is right: it is important that, for the first time, these powers are brought together in a single piece of legislation, making them more understandable, more transparent and more comprehensible.
As the hon. and learned Gentleman also said, it is vital that there are appropriate safeguards in place. Consideration of the clause and the amendments this morning enables us to explore the adequacy of the safeguards and, as we have discussed in previous debates, whether what is already in the Bill is sufficient. In that context, he is right to draw attention to the code of practice. Paragraphs 9.7 and 9.8 describe the particular circumstances that might apply in respect of a bulk acquisition. The code of practice emphasises that a test of necessity and proportionality must be applied to all these matters, but also makes it clear that the operational purposes of the warrant are salient, too.
Ms Dorries, we had a debate in your absence about whether the operational case should be explored in more detail at the outset. Like the hon. and learned Gentleman, I will not reprise that debate, but for your benefit I will say that, in essence, the case he made was that there should be some independent means by which we test the validity of that operational case. The hon. and learned Member for Edinburgh South West, who speaks for the Scottish National party, made essentially the same case. My hon. and learned Friend the Solicitor General and I, having listened to what they said last week, reflected upon it and discussed it, can see that there is some merit in that argument. I will not say more than that today, but I thought their case was reasonable and we might want to look at it.
Of course these matters are sensitive, because as soon as we start to explore operational matters related to the security and intelligence services, we get into that area of what we can and cannot put in the public domain. That is a challenging tightrope—I suppose all tightropes are challenging by definition, but to walk the one between protecting the public interest and protecting the capacity and effectiveness of our security services is particularly challenging. Nevertheless, the case that the hon. and learned Gentleman made about the need for greater scrutiny is interesting.
When it comes to the work we are considering today, it will be beneficial for the Committee to look again at the operational case for bulk powers, which sets out how bulk data are used. Not only does paragraph 5.1 clearly make the case that
“The power to acquire and analyse bulk data is crucial to the security and intelligence agencies’ effectiveness”,
but it also says that those powers are used alongside others, and where others are more appropriate, bulk is not used as a default position—an important point to make, because I think there is a misassumption that that may not be the case. It also says that the capabilities are used to deal with
“high-priority and…emerging threats from individuals not previously known to the security and intelligence agencies”
and that they are vital to disrupting threats of that kind. Fundamentally, it says that they are
“often the only means to acquire intelligence about overseas and online threats to the UK.”
The code of practice then sets out the essential character of those powers, which I will sum up by saying that often in dealing with those threats and deciding how best to counter them, the intelligence and security agencies will have mere fragments of information; they will need to search widely to piece together from those fragments sufficient information to clarify the nature of the threat and to put into place the measures to deal with it; and the collection of data in that respect is fundamental to the work of GCHQ in particular. The idea that that is done without specificity, in a capricious way, is completely at odds with the mission of those organisations, with the safeguards in place here and with common sense. It is not in the interests of anyone to collect data beyond the purpose that I have described, to piece together information, to facilitate better investigation of threats to our national security.
Keir Starmer
I am grateful to the Minister for laying out the background and the way in which the warrants will operate. He makes a powerful case for putting some of that detail in the Bill, because if that is the actual operation, nothing could impede its effectiveness if something more specific is put in the Bill—obviously not the specifics of every operation, but something better than the very general test in the Bill. That would not cut across the operation of the warrants and would be consistent with their use as the Minister describes it.
Mr Hayes
That is the essence of the case the hon. and learned Gentleman makes in his amendments, but before I come to that I want to take this opportunity to set out some of the broader arguments. I am sure that members of the Committee do not need to be disabused of this, because they are extremely well informed and have read the Bill with a scrupulous diligence that is quite impressive, but the wider public may have a misconception about the nature of the powers and what they are there for. I have already dealt with the misconception that these powers are new; they certainly are not, but let me put that into even sharper focus.
In 2010, a group of terrorists were plotting attacks on the UK, including on the London stock exchange. The use of bulk communications data played a key role in the MI5 investigation, allowing investigators to uncover the terrorists’ network and to understand their plans. That led to the disruption of their activities and successful convictions against all the group’s members. This is not an academic debate; it is not a common room discussion among civilised people who take due care of these matters. This is about the day-to-day threats we face and how we counter them. These powers have been and are used to disrupt threats precisely as I have described.
Keir Starmer
In a sense, we are on common ground here. Clause 141 adds to clause 138 and, as the Minister says, indicates that what is set out in clause 138(1)(a) and (2) is not sufficient, but if what comes after the comma—
“but the purposes may still be general purposes”—
is the case, there is no indication of the specific matters that must be listed. More is given in the code, and one has to remember that it is against that operational case that the judicial commissioner then conducts his or her analysis of necessity and proportionality. That is why it is so important. The question is really whether some of what is in the code of practice should not be lifted into the provisions of clause 141.
Mr Hayes
Let me draw my remarks to a conclusion so that we can move on with appropriate alacrity, having set out the broad argument. There are two points. The first is whether more of what is in the code should be put in the Bill and whether that would be helpful. The judgment to be made is whether the Bill is sufficient as it stands. Is the amendment unnecessary because of the requirement that a warrant be issued lawfully and the proper constraint that that places on those who make that decision? Secondly, going back to the hon. and learned Gentleman’s case about the operational case, given that there will be a stringent internal process to ensure that any warrant presented to the Secretary of State is compliant with the statutory requirements, could we say more about the operational purposes?
A combination of those two things would entirely satisfy the hon. and learned Gentleman. The Government are sensitive to all those considerations. Of course we understand the need to balance capability against safeguards, and as I said at the outset, I am mindful of the strength of the argument used when we last met about how we could be clearer about legitimising the operational case. I will leave it at that and invite him to withdraw his amendment.
Keir Starmer
I am grateful to the Minister for the way that he has set out his case and his indication of the Government’s approach. The question of safeguards is extremely important: it is vital for the Committee and the House to get it right. Rather than press these amendments, I will wait to see what response, if any, the Government make to the general case that I have made on a number of occasions about the balance between the code and the Bill and reserve my position for later stages of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr Hayes
I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).
This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.
This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.
Amendment 614 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Joanna Cherry (Edinburgh South West) (SNP)
I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.
Joanna Cherry
I am grateful, Ms Dorries.
As I explained last week, the Scottish National party wish to have part 6 removed and set to one side until a convincing operational case has been made. I noted with some interest the Minister for Security’s comments this morning that he sees some force in the arguments that were made last week. I am pleased to hear that, because I rather had the impression from the way he responded to my arguments last week that he was not going to address any of my points. I look forward to hearing his response to my arguments regarding the United States of America’s experience in relation to bulk powers. If he is not prepared to address them, I very much hope that the Solicitor General will, as I know that he takes his duties very seriously and my points about bulk powers pertain to their legality as well as their efficacy.
The Minister commented last week that the different approach that I was advocating was perhaps indicative of the fact that my party was not and has never been in government. I would like to correct him on that: the Scottish National party has been in government in Scotland for nine years. Unfortunately at the moment we do not have responsibility for national security, but we always co-operate closely with the British Government on such matters—as when Glasgow airport was attacked by terrorists in 2007, for example. We also have a strong record in fighting crime, with the result that recorded crime is at a 41-year low in Scotland. We are not soft on crime or terrorism, and in the coming years we very much hope to devise a security policy for an independent Scotland. We have looked at the experience south of the border; we will also look to international experience. It was on that basis that I addressed in some detail the experience and the reversal of procedures and the approach in the United States of America in relation to bulk powers. It is important that we take cognisance of what happened in the United States of America as well as look at international legal norms in relation to these matters.
The concerns I articulated last week in relation to bulk powers are not felt only by the party for which I speak; they are widely shared by three parliamentary Committees that looked at the draft Bill, by MPs from all parties, including the party of government, NGOs, the technical sector, communication service providers and eminent legal commentators—I refer to the letter written to The Guardian at the time of Second Reading, now signed by more than 250 leading lawyers from across the United Kingdom. They took particular issue with the legality of the bulk powers against the background of a report by the UN special rapporteur on the right to privacy, Joseph Cannataci. He produced a report in March this year about privacy and digital rights generally. He did not mince his words, but said that many of the powers in the Bill are of questionable legality, having regard to recent judgments of the European Court of Justice and the European Court of Human Rights. He singled out the proposals for bulk powers as undermining the very spirit of the right to privacy and said that the benchmarks provided in European jurisprudence indicate that surveillance should be targeted, by means of warrants which are focused and specific and based on reasonable suspicion.
When the Minister had rather lost his patience with me last week, he quoted Ruskin. Let me quote Robert Burns on how the rest of the world looks at this Parliament and how the rest of the world will look at what decisions we take on the Bill:
“O wad some Power the giftie gie us
To see oursels as ithers see us!”
This country was in at the founding of the United Nations. When the United Nations special rapporteur says there is a serious issue with the legality of proposed legislation, no matter how we feel about Europe and the ECHR, we cannot just sweep that to one side.
Even David Anderson QC, the independent reviewer, has described the Bill as,
“a work in progress … laced with technical detail, some of which could usefully be clarified or improved”.
I take this opportunity, because it is very important and I know that he would want me to take this opportunity, to clarify exactly what David Anderson has and has not said about the legality of bulk powers. I shall do that using his own words. In the supplementary written evidence to this Committee, which all hon. Members will have read, dated 12 April of this year, he says at paragraph 9:
“As to the necessity of bulk powers and the extent to which I came or did not come to a conclusion on this issue, the position is as set out in my supplementary written evidence to the Joint Bill Committee of January 2016, paras 4-9”.
If we turn to that supplementary written evidence, his paragraphs 4 to 9 appear under the heading, “Need for bulk powers”:
“It was put to David Davis MP on 16 December (Q177) in relation to ‘bulk interception, bulk acquisition of the collection of communications data”—
Which we are concerned with in this chapter—
“and bulk equipment interference’”—
that is the next chapter—
“that I had looked at them and pronounced myself ‘satisfied that those powers were necessary’. While there is much truth in that comment, I should like to clarify what I did and did not conclude in relation to the need for bulk powers. The central point is that the appointed Commissioners and the IPT are best placed to judge whether each of these powers is necessary and proportionate. The Commissioners have the advantage of longer and more thorough exposure to the exercise of those powers than did I; and the IPT in a number of cases has had the additional advantage of detailed and formally presented argument from both sides”.
Suella Fernandes (Fareham) (Con)
Does the hon. and learned Lady agree that all three independent assessments concluded that the mass surveillance she suggests is complete fantasy? In his evidence to the Joint Committee, Professor Clarke from the Royal United Services Institute endorsed the approach. The idea that the state somehow has a huge control centre where it is watching what we do is complete fantasy. Not only is there a limit to capacity but there is no interest in carrying out such activities.
Joanna Cherry
The hon. Lady may recall that, when I spoke about this on Second Reading, I said that I was not going to use the phrase “snoopers charter” because it is counterproductive, and nor was I going to use the phrase “mass surveillance,” but that I was going to use the phrase “suspicionless surveillance.” What is happening under section 94 of the Telecommunications Act will continue to happen if we pass these powers without questioning them properly: bulk acquisition warrants will authorise the acquisition of huge amounts of communications data on everybody living in the United Kingdom, which will then be analysed by computers at GCHQ without any further need for authorisation. My argument is that that is a form of suspicionless surveillance. While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate. I made some fairly detailed arguments last Thursday about the inadequacy of the operational case and will not repeat them.
Lucy Frazer (South East Cambridgeshire) (Con)
I do not want to misquote the gentleman from BT as I do not have his exact words in front of me, but when we heard evidence from him on our first day in Committee, he said clearly that much of that information was already being collected. I would also like to point out, as I did in a speech on the Floor of the House, that it is clear that Google is already accessing this material and people seem to accept that—Google is analysing the content of our emails.
Joanna Cherry
I will deal with the hon. and learned Lady’s second point first. I accept her legitimate concerns about the extent to which private entities such as Google and others collect private data. Parliament should be looking at that, although it is not really the subject matter of this Bill. However, the crucial difference between Google’s collection of comms data and the UK Government’s, or its agencies’, is that Google does not have the coercive power of the state. It may have great corporate power—in fact, there is no “may” about it—but it does not have the state’s coercive power.
The hon. and learned Lady’s first point was that these powers already exist. We found out only very recently, when the Home Secretary announced it on 4 November last year, the day the draft Bill was published, that the data were already being collected in bulk under section 94 of the 1984 Act. That had never previously been admitted by the Executive—apparently it was known only by a handful of Cabinet Ministers. Parliamentarians had previously been led to believe that communications data retention and acquisition took place under the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014, because that legislation specifically permits the agencies to require comms data on national security and serious crime grounds.
As I said earlier, when section 94 of the 1984 Act was passed, no one envisaged that those powers would be used in that way. The mere fact that the powers are already being used does not necessarily mean that they are proportionate or that we should not carefully scrutinise their necessity and proportionality now that they are being put on a proper statutory footing. In an intervention on the hon. and learned Member for Holborn and St Pancras last week, I made the point that, if we follow the course of action the Scottish National party advocate, which is to remove parts 6 and 7 from the Bill until a proper operational case has been made, and if the agencies who are already using these powers say that they are legal under existing legislation, we will not be jeopardising national security, because the powers will continue to be used—although I stress that their underlying legality is open to question.
I do not want to take up much more time, but I want to make the point that, in the digital age we live in, communications data provide a detailed and revealing picture of somebody’s life. If we look at how comms data are defined under DRIPA and RIPA, we can see that they include the date, time, duration and type of communication, the type of communication equipment used, its location and the calling and receiving telephone numbers. That sort of information can reveal personal and sensitive information about an individual’s relationships, habits, preferences, political views, medical concerns and the very streets they walk on. That point was made in the Digital Rights case by the Court of Justice of the European Union:
“Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”
Keir Starmer
The hon. and learned Lady, speaking for the SNP, made some important points and I want to pick up on one of them—a nagging concern on which clarification would be helpful. The bulk warrant process under this chapter and others presupposes two stages; first the acquisition of the data and then the examination of the data. I have already made my submission that, broadly speaking, the second stage ought to have a higher threshold than the first stage, for obvious reasons.
It is important to understand that there are actually four steps in a classic case. The first is obtaining data. The second is the first stage of the filtering or triage to deselect or not select all the data that are not needed. Jonathan Evans made a very powerful case on that stage, describing how clearing away all the data that the security and intelligence services do not need to consider, so that they can focus on what they do need to consider, is a major part of the task. The third stage is selecting the data they need to consider. The fourth stage is the examination of that selected material.
It is worrying that there is no reference at all in the Bill or in the code—I will be corrected, if I am wrong about the code, but I have looked—to the middle stage of filtering. We saw earlier that for comms data, when others had obtained them pursuant to a Secretary of State’s retention order, there were specific provisions for filtering. Here, for bulk powers, there are none—there is no mention of filtering in the Bill. Is it intended that the examination provisions serve two purposes—first, the filter purpose and secondly, the more specific access purpose? If so, what is to be specified in the warrant when it comes to operational purposes for examination? Is it the operational case for filter or the operational case for access? I suspect they would be different things. The operational case for filter would be, in the main, to move out of the way data that do not need to be looked at, and I am persuaded of the need for that. That would be one operational case, quite broad in nature; but the operational case for access would necessarily need to be more specific.
I am genuinely concerned that those steps are not apparent in the Bill. If they are implied, it would helpful to have on the record how the Minister sees that the provision covers the various steps. Without making the argument again, this point reinforces my argument that the test for examination of data ought to be higher than the test for acquisition or for filter. This is a very specific issue, but it is nagging because it is not in the Bill, whereas earlier on, there were clear provisions dealing with filter and how the filtering arrangements would work.
Mr Hayes
We have covered a lot of ground and rightly so, because this is an important part of the Bill and an important clause.
The hon. and learned Member for Holborn and St Pancras is right to say that there are several parts to the process. Paragraph 9.8 of the draft code of practice says:
“As well as being necessary for one of the operational purposes, any selection for examination of BCD must be necessary and proportionate.”
Paragraph 9.9 goes on to talk about the selection of those data, saying:
“In general, automated systems must, where technically possible, be used to effect the selection of BCD in accordance with section 151 of the Act.”
It talks about the filtering system and who should be authorised to be engaged in it, as well as the selection of data being categorised
“under the specified operational purposes”
and that the methodology used should remain
“up to date and effective.”
It then says that that process should be in accordance with the relevant provision of the legislation—clause 138, which is the point we are at in our considerations.
It may be that the code of practice could say something more about the stages the hon. and learned Gentleman described and set out the process slightly more chronologically, as he did, where that chronology is helpful to explanation. I understand that argument, but what is absolutely clear is that the whole of the process must be lawful and reinforced by both the fundamental test of necessity and the clarity provided by the operational purposes. I think that is the assurance that he seeks. I do not want to put words in his mouth, but I suspect that he was alluding to the possibility that the middle process—as he put it—might be less rigorous in respect of its relationship to the operational purpose. Perhaps that is not what he meant—but if it is, I can assure him that that is not the case.
Keir Starmer
I am grateful for that explanation. I read into the Minister’s observations and the code that triaging or filtering is part of the examination process—it must be, by definition—and is therefore subject to the further requirements of examination. It is helpful to have how it works on the record, but it would be helpful to have that set out in the code, so that it is clear. The remaining concern is that there is a danger that for filtering purposes what is said about the operational case may be fairly general, but for access it may not be. There are two aspects to examination and there is a danger that the warrant either says too little or too much, depending on which purpose one is dealing with. I suspect that that will happen in most cases, because this is going to be a common process.
Mr Hayes
That is an extremely well made point, because the case made for the warrant has to be sufficient to persuade the Secretary of State that it is right to issue it. The case made out for the warrant has to be sufficiently specific to colour the rest of what occurs, to help to define the process the hon. and learned Gentleman describes. However, to return to the argument I made in the earlier debate, by its very nature the collection of bulk material is about taking fragments of information that one then pieces together through this process. The hon. and learned Gentleman is right that a balance has to be struck between that specificity and the very virtue that comes from broader examination of data. Where we might be able to reach common ground, as he put it, is on the character of the explanation in the draft code of practice. Perhaps we can set down what I have just said and what the hon. and learned Gentleman has requested in a slightly different way, which would help the first examination of the information. I hope that is of assistance.
Mr Hayes
The hon. and learned Member for Edinburgh South West has again added to our considerations with the thoroughness of her analysis, for which I am grateful. She quoted Burns, to which I shall return later.
Access to bulk communications will be limited to security and intelligence agencies; it must be for an operational purpose specified in the warrant and be necessary and proportionate. As the hon. and learned Gentleman said, it must be for one or more considerations of national security, serious crime or economic wellbeing where it is linked to national security. On that we agree, but the clause makes it crystal clear that the operational purposes must relate to one or more of the grounds for which the warrant is considered necessary. For example, if a bulk acquisition warrant is issued in the interests of national security and for the purposes of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one or both of those two broader purposes. Operational purposes must also include more detail than the statutory grounds, to ensure that the Secretary of State is provided with a granular understanding of the purposes for which the selection examination may take place. If the Secretary of State does not consider every operational purpose to be necessary, the warrant may not be issued. Therefore this is not a permissive process—far from it. It is designed to determine all that happens after the issuing of a warrant.
Joanna Cherry
I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,
“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”
and,
“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]
Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?
Mr Hayes
In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.
The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:
“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.
That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.
Joanna Cherry
I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:
“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.
That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.
Mr Hayes
Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,
“ability to collect information and act quickly against important foreign intelligence targets”,
as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:
“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.
I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.
To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I beg to move amendment 680, in clause 141, page 111, line 35, after “specify”, insert—
“by name or description the person, persons or single set of premises to which it relates and”.
The Chair
With this, it will be convenient to discuss the following:
Amendment 681, in clause 141, page 111, line 39, leave out—
“but the purposes may still be general purposes”
and insert—
“and any specification must be described in as much detail as is reasonably practicable”.
Amendment 682, in clause 141, page 111, line 39, leave out “but the purposes may still be general purposes” and insert—
“The descriptions must specify—
(a) a basis for the reasonable suspicion that the target is connected to a serious crime or a specific threat to national security,
(b) a high probability that evidence of the serious crime or specific threat to national security will be obtained by the conduct authorised, and
(c) the manner in which all less intrusive methods of obtaining the information sought have been exhausted or can be shown to be futile.”
Amendment 683, in clause 141, page 111, line 41, leave out “may” and insert “must”.
Keir Starmer
Ms Dorries, you permitted me to stray into discussion of clause 141 and therefore I will be brief on this amendment, because the point that I was making was that the specific operational purposes required under subsection (4) of the clause are still general, and the purpose of these amendments is to rectify that position. The best example of that is amendment 681.
The point that I made last week is that if there is to be movement on clause 141, as I suggest there should be, what we should try to do is to draft a clause that would be workable in practice and that I hope would reflect practice as it is.
I will say no more about it, because, as I say, I strayed into discussing these amendments when I was dealing with clause 138.
The Solicitor General (Robert Buckland)
It is a pleasure, Ms Dorries, to serve once again under your chairmanship.
As the hon. and learned Gentleman says, we echoed some of these arguments last week in relation to bulk interception warrants. I will say two things. First, we respectfully submit that the amendments are unnecessary. There are also some technical deficiencies within them, and I have some concerns about those.
As we know, what we are talking about—this is perhaps my first opportunity to say this—is fragments of initial intelligence. That is what bulk acquisition is all about. It is about taking those fragments and then being able to identify potential subjects of interest that might pose a threat to the UK.
Limiting the examination of data collected under a bulk warrant to circumstances in which an operation or investigation is already under way, or tying a warrant to individual persons or premises, would mean that a bulk acquisition warrant just could not be used in that way, and it almost goes without saying that it would then severely limit the capabilities of the security and intelligence agencies to keep us safe.
Clause 151—helpfully, we have already jumped to clause 141—is also an important clause. It makes it clear that selection for examination may take place only for one or more of the operational purposes specified in the warrant.
Keir Starmer
I, too, went to clause 151, expecting a further safeguard, but all one gets in subsection (2) is the repetition and reference back to clause 141. That is the point that I hope I am consistently making. We do not get a graded safeguard that ups the threshold at each stage; we get a threshold that refers back to the previous threshold.
The Solicitor General
I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.
May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.
Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.
The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.
Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.
Joanna Cherry
I agree we must take care. The Solicitor General was careful to say that the conclusions he just mentioned were drawn in relation to the gathering of data outwith the United States of America. He would agree that the USA has strict constitutional rules about the gathering of its own citizens’ data, which is what we are concerned with here. It is not just about overseas, but our own citizens’ data.
The Solicitor General
I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.
Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.
Keir Starmer
Granularity is a great word, and increasingly popular. It implies something crunchy and grain-like. I have made this point, but though clause 141(4) says that it is not sufficient to simply say “national security”, it does not say much else, and therein is the nub of the problem that the amendments are intended to correct.
I have made my submissions. I heard what the Minister said and I have listened carefully to the Solicitor General. We have been over the territory. I will not press the amendments at this stage, but I may be minded to at a later stage, because getting this issue right is critically important. It may be better if we try to get it right before that stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Solicitor General
I beg to move amendment 615, in clause 143, page 113, line 2, leave out “one or more”.
This amendment is consequential on amendment 616.
The Solicitor General
The amendments are aimed at clarifying that a bulk acquisition warrant can be modified so that all the activities that fall within clause 138(7)(a) which were authorised or required by the warrant cease to be so authorised or required. That clarifies that where a warrant is modified in relation to activity required of a service provider, it can be modified only to end or cease the acquisition of communications data under the warrant and not to make any changes to the scope of that acquisition.
That provides for limited circumstances, such as when a communications service provider helping with giving effect to the warrant goes out of business, where it continues to be necessary and proportionate to examine communications data collected under the warrant. For the avoidance of doubt, in instances where the requirements placed on a service provider need to be amended, a new warrant would be required. It is a limited but important clarification that I hope will reassure hon. Members.
Amendment 615 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I rise to speak to amendment 522, in clause 148, page 116, line 10, at beginning insert—
“Where such a warrant is to be given to a person outside the United Kingdom, the warrant shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”.
The Home Secretary confirmed at second reading that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs.
This amendment and amendment 523 to the next clause are similar to amendments I tabled to other clauses dealing with overseas service and implementation of warrants, including bulk warrants. I have already outlined our concerns and will not repeat them. I will not press the amendments as I have previously withdrawn similar versions. We may revisit this issue when we get to the overarching matter of the oversight provisions that may address some of the concerns of some of the companies that will be affected by these wide powers.
Keir Starmer
I rise to speak to amendment 523, in clause 149, page 116, line 43, at end insert “which for a relevant operator outside the United Kingdom shall include—
(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or
(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”
This amendment clarifies the reasonableness test for overseas CSPs.
The amendment deals with conflict of law in similar provisions to the previous amendments, and for the same reasons I do not intend to press it.
The Chair
With this it will be convenient to discuss:
New clause 15—Safeguards relating to items subject to legal privilege—
‘(1) Section [Authorisations in relation to items subject to legal privilege] applies, with the necessary modifications, in relation to an application for a bulk acquisition warrant as it applies in relation to an application for an authorisation under Part 3.
(2) Section 135 [additional safeguards for items subject to legal privilege] applies, with the necessary modifications, to the selection for examination of communications data obtained under a bulk acquisition warrant as it applies to the selection for examination of intercepted content obtained under a bulk interception warrant.”
Keir Starmer
I have raised this issue before so I will not take much time on it now. I said previously and heard no contrary position put in the debate that in this chapter dealing with bulk acquisition warrants there is no specific provision for legal professional privilege for journalistic material or for communications with MPs. The Bill contains no guidance on how those categories of material are to be protected, if at all. New clause 15 deals with legal privilege. I have previously made points on the subject and I know the Solicitor General is looking at legal privilege generally. I simply ask that this be taken under the umbrella of consideration of privilege, so that however it is applied throughout the Bill there is consistency of approach that safeguards privilege properly. I do not intend to push the amendment to a vote at this stage.
The Solicitor General
I will briefly reiterate the Government’s position. We believe there is a logical basis for the differentiation at this point, before the examination stage, as it is at the examination stage that the particular sensitivities of the occupations of journalist, lawyer or parliamentarian come into play. We are dealing with an earlier stage.
Keir Starmer
My concern is that acquisition and examination are dealt with in the same warrant, so I think we are dealing with access. It probably does not affect the second point about how it is dealt with generally. The point is that these warrants do provide for examination.
The Solicitor General
There are, in fact, two stages. The code deals with sensitive professions at the examination stage. There are those two important stages, to which I have referred. The other aspect of the debate is when an obviously sensitive piece of information, namely a fact that a person has communicated with a lawyer, becomes privileged is a subject of ongoing discussion. It is more than an interesting point; it is an important point. There is a very respectable argument for saying that although the data might be sensitive, it might not attract LPP, but we need to discuss it further.
I can reassure Members at this stage that the protections for legal professional privilege in the draft bulk communications data code of practice mirror the protections that the divisional court deems appropriate. We are clear that the application of protections at the point of selection for examination is the correct approach. In the context of bulk communications data, we do not think that applying additional safeguards at that stage would be effective or necessary.
Question put, That the clause stand part of the Bill.
Keir Starmer
I rise to speak to amendment 687, in clause 152, page 119, line 17, at end insert—
‘(2A) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
Again, I can be brief. The framework of safeguards and provisions relating to offences are pretty well the same throughout the bulk powers, and we have been across this territory before. The purpose of the amendment is to provide for a defence for whistleblowing activities. We have discussed it in Committee and I do not intend to press the matter to a vote. It is the subject of ongoing discussions and will need to be dealt with in an overarching and consistent way throughout the Bill.
The Chair
The question is that the clause stand part of the Bill. As many as are of that opinion say Aye. [Hon. Members: “Aye.”] Of the contrary No. I think the Ayes have it, the Ayes—
Joanna Cherry
I am sorry, Ms Dorries. I was catching the shadow Minister’s eye to establish who is to speak first on this clause. That is why I did not stand up.
Keir Starmer
I am sorry, Mr Dorries. It is my fault. We had a very late night last night on other matters. I should have notified you this morning about who is to be leading on each of these provisions, and I did not do that. If it helps the Committee, I can indicate that when we get to each of the bulk powers, the clause that introduces the bulk power will be subject to considerable debate for obvious reasons. I anticipate, although I cannot say with certainly, that the pattern will be pretty similar to the one we have just seen, and that as we go through the following clauses we will go at much greater speed.
I have been trying to divide the work between me and the hon. and learned Member for Edinburgh South West. We had agreed that she would lead on this clause, and she was just checking with me that that was my understanding. I apologise. We were tied up in another debate yesterday and I did not give you notice as I should have done, Ms Dorries.
Joanna Cherry
I can confirm that that is what the hon. and leaned Gentleman and I agreed. I apologise for any inconvenience caused by my momentary inadvertence, Ms Dorries.
The Scottish National party’s approach to chapter 3 of part 6, which deals with bulk equipment interference and is introduced by clause 154, is to oppose the inclusion of bulk equipment interference warrants in the Bill until such time as a proper and adequate operational case has been produced. I will speak at some length on this matter because it is of great importance.
I remind hon. Members that when I spoke earlier this morning I said that David Anderson had reached
“no independent conclusions on the necessity for or proportionality of…bulk equipment interference”.
In paragraph 8d of his supplementary written evidence to the Joint Committee in January—he reminded us in his supplementary written evidence to this Committee in April that he still holds this view—he said that he reached no independent view
“on the necessity for or proportionality of…bulk equipment interference…which in view of pending IPT litigation and the limited nature of my remit…I touched upon only briefly in my report…The remarkable potential for this capability is evident from the Snowden allegations relating to the hacking of and implantation of malware into systems operated by persons not themselves suspected of wrongdoing”.
Hon. Members will recall that last Thursday I addressed the issue of how bulk equipment hacking could cause severe problems for our security services. I gave examples of how in the past it has led to the outage of the internet in Syria. I also referred to modern defence systems and said that it could disrupt the radar and photonic systems of our fighter pilots in Syria, which could result in danger not only to them but, perhaps more importantly, to civilians on the ground. All of us, no matter which side of the debate on bombing Syria we were on, want to avoid that.
Similarly to chapter 2 powers, the use of targeted hacking by the agencies was only very recently acknowledged by the Government through the Home Office’s publication of an equipment interference code of practice, although it made no mention of bulk hacking capabilities, which are now to be put on a statutory footing by part 2 of the Bill. The scope of a bulk equipment interference warrant, as outlined in clause 154, is astonishingly broad and will pave the way for intrusions over and above those revealed by Edward Snowden, pinpointing hacking as the modus operandi of surveillance. As with bulk interception, clause 154—particularly subsection (1)(c)—and the clauses that follow provide that the main but not sole aim of the warrant must be to facilitate the obtaining of overseas data, but that does not prevent data on UK residents being collected as a subsidiary objective or in pursuit of the main aim. I addressed that issue at some length on Thursday last week, so I do not wish to take up the Committee’s time by unnecessarily addressing it again.
The bulk hacking warrants under clause 154 will authorise interference with any equipment whatever, because of the definition of equipment in clause 156. The provisions will afford interference with any equipment whatever for the purposes of obtaining communications equipment data or information. They will enable bulk warrants to be issued in the interests of national security or economic wellbeing, or for the prevention and detection of serious crime. The hon. and learned Member for Holborn and St Pancras and I have already spoken at some length about those grounds, so I will not reiterate those points. I shall simply repeat what I have said before: I am concerned about the economic wellbeing ground and that the prevention and detection of serious crime ground is not rooted in reasonable suspicion.
The Home Office has told us that, as bulk equipment interference has previously been practised under the Intelligence Services Act 1994, which it says allows for interference with property or wireless telegraphy, the powers in the Bill are not entirely new. The Home Office also says that the intelligence services can acquire a warrant under the 1994 Act to search a property or intercept a person’s phone calls. There is, though, no mention in that Act of bulk or mass equipment interference.
Chapter 3 of the Bill, which begins with clause 154, is therefore very much an innovation on the outdated Acts, such as the 1994 Act. There is a significant expansion of such powers as already exist. Indeed, the Snowden documents revealed that even British intelligence agencies expressed concern that such mass hacking practices as had taken place to date, purportedly under the 1994 Act, might be illegal. If the British intelligences agencies are themselves concerned about the legality of the powers under which they are currently operating, that is all the more reason for us to scrutinise carefully the legality of the powers set out in chapter 3.
Having looked at the clock, Ms Dorries, I am mindful of the fact that the Committee rises at 11.25 am. I have to be in the Chamber soon for Justice questions, so I wonder whether this might be an appropriate point at which to pause. I will perhaps have a little more to say when the Committee sits again this afternoon.
The Chair
It is for the Whip to move that the debate be adjourned. It is not for me to end the Committee early.
Ordered, That the debate be now adjourned.—(Simon Kirby.)
Investigatory Powers Bill (Twelfth sitting)
Tuesday 26th April 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
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Joanna Cherry (Edinburgh South West) (SNP)
It is a pleasure to welcome you back to the Chair, Mr Owen. Before the Committee adjourned for lunch, I was addressing clause 154, which is the opening clause of chapter 3 of part 6 of the Bill and deals with bulk equipment interference warrants. I explained that the Scottish National party wishes to see these provisions removed until such a time as the Government have produced what we consider to be an adequate operational case.
Bulk equipment interference is often described colloquially as hacking or bulk hacking. The guide to powers that accompanied the draft Bill made it clear that bulk hacking is a significant step beyond conventional surveillance powers, and remarked that bulk equipment interference is
“used increasingly to mitigate the inability to acquire intelligence through conventional bulk interception and to access data from computers which may never otherwise have been obtainable.”
Labelling mass interception powers as conventional is a bit odd when the Bill avows them for the very first time. The quote I just read out also underlines the fact that the Bill makes a considerable demand for unbridled access to all information. That is particularly worrying in the light of the very broad definition of “equipment” that is found in this part of the Bill. I am sure you will forgive me for skipping forward slightly, Mr Owen, but this does relate to clause 154. Clause 173 defines equipment as
“equipment producing electromagnetic, acoustic or other emissions or any device capable of being used in connection with such equipment”.
That is very open-ended and could even include cars and aircraft, which relates to the analogy with fighter aircraft that I made earlier. We are concerned that the power is open to potential abuse—not necessarily, as I have said before, by the current Government, but possibly by future UK Governments, as well as by other states that will follow our lead in legislation—because there is such loose language.
Following scrutiny of the draft Bill, the Intelligence and Security Committee reported that
“the Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants”
and
“therefore recommends that Bulk Equipment Interference warrants are removed from the new legislation.”
Before we adjourned this morning, I alluded to the fact that David Anderson QC had expressed concern about bulk equipment interference and said that he had not addressed the necessity and proportionality of such a power.
Despite what the ISC said, the power for bulk equipment interference warrants remains in the Bill. My argument is that that is rather concerning because bulk hacking, as I will call it, is by its very nature indiscriminate, as acknowledged in the draft Bill’s explanatory notes, which state that
“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.
Instead, systems, services and software that have been carefully constructed to provide security are intentionally corrupted by bulk hacking to impose the eyes and ears of the intelligence agencies on every phone call, text message and web click.
To use an analogy from the offline world, granting this power would be equivalent to allowing the secret services to break into an innocent person’s house, bug it and leave broken windows for anyone else to get in, without the person knowing it has happened. The problem with the digital world is that the data can be rich and revealing, as I said this morning on communications data. Most of us put everything online nowadays, and our equipment will therefore be like a filing cabinet, with diaries, calendars, video archives, photo albums, bookshelves, address books and correspondence files.
Digital forced entry entails not only intrusion into highly personal spaces but control over those spaces. The individual who has hacked into a piece of equipment can not only access what is stored on it but add or delete files, send messages from it masquerading as the person to whom it belongs, turn it on or off and covertly activate cameras and microphones. It really is quite extraordinarily intrusive.
We heard about that in evidence on 24 March, when Eric King referred to GCHQ’s Optic Nerve programme, which involved hacking into webcams. Whatever one might think of it, many people use webcams for sex chat online. I am not talking about people who abuse children, which is obviously utterly reprehensible. Many consenting adults send indecent images to one another online using webcams. If they are doing that in the privacy of their own homes, and it is not illegal or hurting a child, I do not see any problem with it.
GCHQ’s Optic Nerve programme broke into individuals’ privacy. Such extraordinary power over the private lives of citizens fundamentally alters the relationship between citizen and state. If we allow this to go ahead without a proper operational case, it could breed distrust in law enforcement, which could have significant repercussions for the rule of law.
The equipment interference and bulk hacking envisaged in clause 154 have security repercussions. I alluded to those last week, so I will not go into detail. However, if we create a weakness in a piece of equipment in order to let the good guys—the security services—in, that weakness exists as a portal for the bad guys, as in criminals and terrorists, to get into the same equipment.
There are serious security concerns about bulk interference. This power is especially excessive, dangerous and potentially destructive. It is one of the most intrusive powers in the Bill, and it jeopardises the privacy of ordinary, innocent people who live in these islands. SNP Members urge fellow members of this Committee and parliamentarians to follow the Intelligence and Security Committee’s advice and remove these bulk equipment interference powers from the Bill until a convincing case has been made for not only their utility but their necessity and proportionality.
Keir Starmer (Holborn and St Pancras) (Lab)
I, too, welcome you back to the chair, Mr Owen. This bulk power is, like the others, very wide. Equipment interference includes what is commonly known as hacking, which can be done remotely or by attaching monitoring devices to computers or communications equipment. As has been mentioned, equipment is defined very broadly, covering anything that produces electromagnetic or other emissions. The power is therefore very wide.
It is unsurprising that the ISC was initially sceptical and that David Anderson has raised a number of concerns. I will not repeat the points made by the hon. and learned Member for Edinburgh South West, who spoke for the SNP, but I want to draw attention to the relationship between this bulk power and thematic warrants, which was one of the concerns raised by David Anderson.
If one looks at the structure of clause 154(1), skipping for the moment subsections (2) and (3), and lays it alongside clause 88, the similarities in the description of the warrant are apparent. Part 5 deals with equipment interference and targeted warrants; chapter 3 of part 6 deals with bulk equipment interference warrants. Clauses 154 and 88 are very similar in structure and scope—the difference is that clause 90 qualifies clause 88. The difference we are discussing is that we have, in essence, the same power for equipment interference, but we do not have the qualification of the subject matter that is clause 90. We have already discussed clause 90 at some length and, for a targeted power, it is itself extremely wide.
The Minister for Security (Mr John Hayes)
On the specific point made by the hon. and learned Gentleman in relation to the connection between clauses 90 and 88, in contrast with the matters we are now discussing, the whole point about clause 90 is that it deals with the particularity associated with warrants that are by their nature targeted, whether individually or thematically as a group some of which are known to the intelligence services. Bulk matters are by their nature less particular, so could not be subject to the same qualification.
Keir Starmer
I am not making the argument that those warrants should be subject to the same qualification. I am drawing attention to the fact that clause 90 is what, in essence, turns clause 88 into a targeted or thematic warrant, rather than a bulk warrant. The qualification is left out in connection with clause 154, which deals with a bulk power. I am not suggesting that one borrows clause 90 into this chapter, because otherwise we would simply be rewriting the same provision.
The point I am making is that the concern about clause 90 in relation to themed warrants was that it was a very wide provision in its own right. I think David Anderson went as far as to say that it was hard to see what could not, in truth, be caught within a thematic warrant under clause 90. We have a very wide power there, drawing attention to the breadth of the power under clause 154, which is everything over and above what is already a thematic warrant power under clause 90. That indicates why an operational case is so important in relation to the bulk power. One has a very wide bulk power that is distinguished from what is already a very wide thematic power. That reinforces the need for an independent evaluation of an operational purpose that makes the case for this even wider power.
As far as the safeguards are concerned, clause 156 is, in familiar terms, referencing necessity and proportionality, but to the wide national security grounds falling under subsection (2)—the familiar phrasing. It is the same scheme for these warrants. Then, skipping forward to clause 161, there are the same limits on operational cases, so one has a very wide necessity and proportionality test for the warrant in the first place, then a reference back, in essence, to the same test when getting to the requirements that must be met by warrants. I have made this case this morning and, I think, last Thursday, so I will not repeat it further.
I want to draw attention to the breadth of the power and to underscore why a better and evaluated operational case is needed when one is going on beyond what is already a very wide thematic warrant.
Mr Hayes
We had a lengthy debate on these matters this morning, but it is worth repeating. It was Proust who said:
“A powerful idea communicates some of its strength to him who challenges it.”
On that basis, I am hoping to communicate still more of the strength of my argument as a result of amplifying it, but with appropriate brevity, I hope. Let us be clear: bulk powers matter. They matter for the reasons I set out earlier, and that case is made—convincingly, in my judgment—in “Operational Case for Bulk Powers”, which was published by the Government in response to the criticisms of those who considered these matters early on and felt there was a need for greater explanation of the case for them.
Bulk equipment interference is particularly addressed on page 6 of that document. It says:
“This involves the acquisition of communications and equipment data directly from computer equipment overseas. Historically, this data may have been available during its transmission through bulk interception”.
This is the key point:
“The growing use of encryption has made this more difficult and, in some cases, equipment interference may be the only option for obtaining crucial intelligence. As with bulk interception this is an overseas collection capability.”
We are here talking about a power that is used at present, and is of growing significance to our agencies in combating the threat that they face.
The Investigatory Powers Tribunal, has made clear that
“the requirement for a balance to be drawn between the urgent need of the Intelligence Agencies to safeguard the public and the protection of an individual’s privacy and/or freedom of expression”
matters. It also stated:
“We are satisfied that with the new E I Code, and whatever the outcome of Parliamentary consideration of the IP Bill, a proper balance is being struck in regard to the matters we have been asked to consider.”
The evidence that we have before us suggests, and I use that judgment as an example, that those who oversee these matters gauge what is already happening, and what is proposed, to be appropriate. Having said that, it is important that we test those arguments closely in this Committee—that is part of the Committee’s purpose, after all.
The hon. and learned Gentleman and the hon. and learned Lady drew attention to David Anderson’s remarks. David Anderson asked why equipment interference warrants were required, given the possible breadth of targeted thematic warrants of the kind that have been discussed. I say this: clear and important distinctions between bulk equipment interference and targeted thematic operations are set out in paragraph 4.38 of the draft equipment interference of the code of practice.
Members will be able to study that code in detail, but for their convenience, bulk equipment interference includes the additional safeguards of the bulk regime and is an important capability in its own right. Both bulk equipment interference and targeted thematic equipment interference operations can take place at scale if the relevant criteria are met. However, targeted equipment interference warrants are limited by the need to assess proportionality at the outset. A bulk equipment interference warrant is likely to be required in circumstances where the Secretary of State is not able to assess the extent of every interference to a sufficient degree at the time of issuing the warrant. The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interferences that cannot be assessed fully at the outset.
It seems to me that that is the essence of this argument. Both have their place, and both are subject to checks and balances, and to safeguards and protections. In terms of the effect of those safeguards, I think we can all conclude, based on the evidence before us and what we know is already happening and is proposed in the Bill, not only that what is happening now is proportionate and reasonable, but that the Bill goes even further in adding to those safeguards.
In essence, my argument is pentadactyl—it has five fingers. First, this power is necessary; secondly, it is already in existence; thirdly, those who oversee these things have gauged it to be necessary and proportionate; fourthly, the Government have responded to early scrutiny by tightening safeguards through the codes of practice and explaining them more fully; and fifthly, the Bill goes still further than all the existing good practice. That seems to me to be a persuasive argument.
Keir Starmer
My purpose is not to explain why it is not. That is not always the purpose of these interventions. We are probing the adequacy of the safeguards, which is the proper role of the Committee.
I had marked up that paragraph in the operational case, because, as the Minister has said, it makes the case that, at the outset, certain assessments of necessity and proportionality cannot be made. It says in terms:
“The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interference that cannot be assessed fully at the outset.”
I know that I have said this before, but I really want to make it clear. At the outset, the test of necessity and proportionality is against the operational case and the operational case is specified in the terms in clause 161(5), which takes a familiar form: the operational case cannot be so general that it is merely national security, but it can be general. We have been around that circle, but that is the test at the outset and I have made my comments about that.
The problem is that the test is the same when it comes to examination. Under clause 170, which deals with the safeguards in relation to examination, selection is defined as proportional and necessary so far as it is in accordance with the test in clause 161. This point is central to what is said in the operational case. If the test were different at each stage, I would accept that the argument was logically right, but the test is in fact the same. I see that as a deficiency and I am probing for clarity.
Mr Hayes
I acknowledge that it is certainly true that much rests on the operational case. In all our sermocinations, it has been clear to me that the hon. and learned Gentleman has identified that as crucial in advancing his argument that we need to provide still more transparency. He has done so in a reasonable way, because he acknowledges that there is a line to be drawn between the explanation of that case and revealing what cannot reasonably be said publicly because it would compromise the work of the agencies. I acknowledge that.
Of course, what the hon. and learned Gentleman did not say, although he knows it—perhaps he felt that there was no need to say it—is that the warrant must be deemed to be necessary for one of the core reasons: national security, serious crime or, where it is linked to national security, economic wellbeing. Access to the data must be deemed to be necessary on the grounds of the operational purposes. There is a test at each stage of the process and, in my judgment, that test is robust, but I again acknowledge that there may be a virtue in being clearer about the operational case. I was making a point about existing power—that power is currently available through the Intelligence Services Act 1994. Therefore, it is not new, but the safeguards are. Drawing those together in a single place, and therefore allowing the more straightforward exploration of both their purpose and their effect, is certainly new.
Above and beyond that, the oversight that is given additional strength in the later part of the Bill is there to ensure that all that is done meets the test that we have set, in terms of protecting private interests and so on. I acknowledge the argument about the operational case being a powerful one, but I think the structure of what we have put together stands scrutiny.
There is another argument that has not been used much in the Committee. In a sense, I hesitate to explore it now because in doing so I may be opening a hornets’ nest, but I am not a timid Minister, so why would I not want to face the stings that I might unleash? It is necessary to make the language future-proof, as far as one reasonably can. One of the criticisms of what we are doing—bringing the powers together in a single Bill, creating safeguards of the type we are building, trying to be as comprehensive as we can in this legislation—is that, because of the rapidly changing character of technology and the resultant effect that that has on both the threat and our ability to counter it, this legislation may be relatively short-lived.
If we look, albeit with the benefit of hindsight, at what has happened previously, we see that the legislation that the Bill replaces has, for the most part, been iterative—it has been a response to that dynamism. The language in the Bill is designed to be as carefully constructed as possible to allow the Bill to stand the test of time. Central to that is the advent of the double-lock mechanism, which should ensure that the powers are not misused by a future Government. That relates to something the hon. and learned Member for Edinburgh South West said in a previous sitting of the Committee. I think she argued that I cannot bind the future, and I said, with some reluctance, that that was true.
Joanna Cherry
Jo Cavan from IOCCO—the Interception of Communications Commissioner’s Office—told us on 24 March that the double lock and warrantry applies to only 2% of authorisations under the Bill. Does the Minister agree that he should be very cautious praying in aid the double lock as a safeguard when it applies only to such a small percentage of authorisations?
Mr Hayes
Yes, but the hon. and learned Lady knows well that the double lock applies to some of the most contentious parts of the process and, at the end of the day, is the involvement of the judiciary in a process that has been exercised at the sole discretion of the Executive up until now. The significance of that marriage between Executive authority and judicial involvement is considerable. All but the most mean-spirited of critics would want to warmly acknowledge that, and I see the warmth emanating from the hon. and learned Lady as she rises.
Joanna Cherry
I am not going to be mean-spirited. I acknowledge that the Government have made a significant step in the right direction by introducing judges into the warrantry process. I have my reservations about the degree of the introduction—I would like to see full-blown judicial warrantry—but my point is about how far that double-lock process can be seen as a safeguard when it applies to only 2% of the authorisations under the Bill. My point is not that it is not a safeguard but that it applies to only 2% of authorisations.
Mr Hayes
The double lock applies to all the most intrusive powers. We can have a debate about whether—I do not want to put words into the hon. and learned Lady’s mouth—she wanted to rob the Executive, rob the people’s representatives, of all their authority. She may have felt that it was unnecessary for those accountable to the people—the personification, as I hope I am, of the people’s will—to have any involvement in these matters, but I do not take that view. I believe in representative government and I think we have got absolutely right the marriage between Parliament and the judiciary—but we stray, I sense, from the precise detail of this part of the Bill.
My judgment is that we have reached the place that we need to get to in order to get the marriage between safeguard and effectiveness right, with the caveat that I have already introduced on the operational case, and in the knowledge that a bulk equipment interference warrant can be used to authorise the selection and examination of material obtained by the warrant and does not require a separate examination warrant and permits the disclosure of material acquired in the manner described in the warrant. I think that this is an important additional power and on that basis I hope that the Committee will agree to this part of the Bill.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 695, in clause 156, page 122, line 34, leave out subsection (2)(b).
The Chair
With this it will be convenient to discuss the following:
Amendment 696, in clause 156, page 122, line 37, leave out subsection (3)
Amendment 697, in clause 156, page 122, line 47, at end insert—
“(6) Where an application for the issue of a bulk equipment interference warrant includes the activities set out in section 154(4)(b) it may only be issued if the Secretary of State considers that selection for examination or disclosure is necessary for the purposes of—
(a) a specific investigation or a specific operation, or
(b) testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.”
Keir Starmer
These amendments are intended to tighten up clause 156. I will not take up a great deal of time on them. These amendments go to the intervention that I was making which was too lengthy to do justice to the point, but it was such an important point that I want to go through it one more time. If I am right about it, I hope that others will listen and take this away. If I am wrong about it, I will not repeat the argument. The proposition about which I am concerned is as follows. If one looks at subsection 156(1) then, as set out in the “Operational Case for Bulk Powers”, the test that the Secretary of State is applying at the outset will be applied in some,
“circumstances where the Secretary of State or Judicial Commissioner is not able to assess the necessity and proportionality to a sufficient degree at the time of issuing the warrant.”
So that is the test. To issue a bulk equipment interference warrant, the Secretary of State must be satisfied that it is to “obtain overseas-related communications”, as set out in clause 156(1)(a); that it is necessary on the broad grounds—of which the Minister just reminded me—of national security, preventing crime and promoting economic wellbeing, as set out in paragraph (b); and, as paragraph (c) sets out, that it is proportionate. Clause 156(1)(d) continues the stages that the Secretary of State must carry out, and requires that the Secretary of State considers that,
“(i) each of the specified operational purposes (see section 161) is a purpose for which the examination of material obtained under the warrant is or may be necessary, and
(ii) the examination of such material for each such purpose is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary”.
So at the outset the Secretary of State is considering necessity against the broad canvas of national security. She is also considering the operational purposes and asking herself whether such a warrant is necessary against those operational purposes, and going on to the examination of whether it is necessary on any of the grounds on which the Secretary of State considers the warrants to be necessary. The Secretary of State is taking into account the operational purposes and applying a necessity test to this. That is the test applied at the outset, and that is the test that the operational case understandably says may be difficult to apply in certain circumstances. I do not quarrel with that, and I understand why that might be the case.
Going on to clause 161, what are the operational purposes which the Secretary of State is to take into account and test necessity against? There the operational purposes are requirements of the warrant, and they go beyond the provisions in clause 156(1)(b) or (2) and may be general. So the Secretary of State has in mind a very broad national security issue, and then the operational purposes, and asks herself whether it comes under both of those heads. The second head can be a general one. We have quarrelled about that—or argued about it or made points about it—but those points remain as good or as bad as they were the last time they were made. The point I am seeking to make is that the “Operational Case” suggests—and this may indeed be the case in practice—that at the examination stage some higher or different test is applied, and that that adds a safeguard. Again, if there is something in that then I hope that somebody will take this away and think about it, and if there is not then I will not repeat it. My concern is that clause 170(1), on the safeguards relating to examination of materials, states:
“For the purposes of section 168, the requirements of this section are met in relation to the material obtained under a warrant if—”
which is followed by a number of requirements, including:
“(b) the selection of any of the material for examination is necessary and proportionate in all the circumstances”.
Clause 170(2) states:
“The selection of material obtained under the warrant is carried out only for the specified purposes if the material is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 161”.
So the test for selection for examination is curtailed by the provision in sub-paragraph (ii) that it is only so far as is necessary for the operational purposes specified in the warrant, as set out in clause 161. I accept that “specified” means the warrant at the time of selection of material, as set out underneath. For the record, I therefore acknowledge the possibility that the operational case may be differently described at the time of the second test. However, on the face of it, the same test is being applied at the examination stage as was applied by the Secretary of State. That is the cause of my concern and the reason why, in my argument, some further thought must be given to strengthening the threshold when it comes to the access provision. Because the only way that the operational case can be different at the point of selection of material from the point at which the Secretary of State is involved, is if it has been modified, which means it has not gone through the same procedure as the warrant in the first place. That is the real cause of concern. I have labelled it that but I do not think that on the intervention I made it as clear as I should have done.
If there is a material difference in the test, that ought to be spelled out in the Bill and it is not. The amendments are intended to tighten up the specifics in clause 156. I will not press them to a vote but I have read this into the record because it is a matter of concern. There is either an answer, which means I am wrong about this and should stop repeating my submission, or it is something that others need to take away and have a serious look at in terms of the test.
Mr Hayes
I am not sure that we need to rehearse the general arguments in respect of bulk again—they have been well covered in earlier considerations—except to say this. It is critically important that the agencies maintain the ability to use these powers for economic wellbeing, where, according to the Bill, these are tied to national security. That was a point that was made by my hon. and learned Friend the Member for South East Cambridgeshire at a very early stage on Second Reading.
On that basis alone, one would want to resist the proposed amendment. However, the hon. and learned Gentleman has made some more tailored arguments that deserve an answer. Let us just deal with the tests. There are two tests. There is the test contained in clause 158, where the Secretary of State and the commissioner must be satisfied that it is necessary for data required under the warrant to be examined for specific and specified operational purposes.
In clause 170, the analyst examining the data must be satisfied that the examination of a particular piece of data is necessary for a particular operational purpose. So there are two tests that are designed to be appropriate at different points in the process. That is why the list is written as it is. Does that satisfy the hon and learned Gentleman?
Keir Starmer
I hear what the Minister says and I will be brief. The only reference to operational purposes in clause 170 is to the operational purposes on the warrant. Therefore, they will be the same operational purposes as were before the Secretary of State, unless the warrant has been modified. Maybe I should just have said that in the first place and made it a lot shorter, but that is the nub of the problem as I see it.
Mr Hayes
Yes, the point of that further analysis is that the analyst must be confident that the particular work relates to those specified operational purposes. The reason that that further work is done down the line, as it were, is to ensure that there is no digression from the stated operational purposes, and that in that sense this is an important further safeguard.
Let me give an example to illustrate. The Secretary of State may consider that it is necessary for the data required under the warrant to be examined for two or three purposes. The analyst needs to say which particular purposes relate to a particular search. Therefore this is a refinement of the work of the analyst to ensure that it is true to the intention of the Secretary of State in authorising the process. This is an illustration of Committees of this House at their best: we are digging deep down, in very fine-grained detail. With those assurances, I hope that the hon. and learned Gentleman will be convinced by what we are trying to achieve.
Keir Starmer
I will reflect on what the Minister has said and in the meantime will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 698, in clause 157, page 123, line 3, leave out from “must” to end of line and insert “determine”.
The Chair
With this it will be convenient to discuss amendment 699, in clause 157, page 123, line 15, leave out subsection (2).
Keir Starmer
Having tested the patience of the Committee on the point I was labouring on the last amendment—which I think is important, even if I am alone in that—I can indicate that these and the other amendments following in this chapter are all similar to previous amendments. I will deal with them quickly.
Amendments 698 and 699 deal with the test for the judicial commissioner. If it is helpful, I can indicate to the Solicitor General in advance that, having been round the track on this issue, I am not going to repeat the arguments or press them to a vote, because of the discussions we have been having.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I rise to speak to amendment 700, in clause 158, page 123, line 35, leave out from second “period” to second “the” in line 36 and insert “of 48 hours after”.
The Chair
With this it will be convenient to discuss the following:
Amendment 701, in clause 158, page 123, line 35, leave out from second “period” to second “the” in line 36 and insert “of 24 hours after”.
Amendment 704, in clause 162, page 125, line 32, leave out from “period” to third “the” in line 33 and insert “of 48 hours after”.
Amendment 705, in clause 162, page 125, line 32, leave out from “period” to third “the” in line 33 and insert “of 24 hours after”.
Amendment 706, in clause 162, page 125, line 35, leave out “6 months” and insert “1 month”.
Amendment 710, in clause 165, page 128, line 24, leave out “ending with the fifth working day after the day on which” and insert “of 48 hours after”.
Amendment 711, in clause 165, page 128, line 24, leave out “ending with the fifth working day after the day on which” and insert “of 24 hours after”.
Keir Starmer
The amendments deal with the periods during which an urgent warrant is valid. They are serial in the sense that they are the same as the provisions I tabled for approval warrants in urgent cases for other bulk powers. I will not press the amendment.
Keir Starmer
I rise to speak to amendment 689, in clause 161, page 125, line 9, after “describe”, insert “precisely and explicitly”
The Chair
With this it will be convenient to discuss the following:
Amendment 690, in clause 161, page 125, line 10, at end insert “including the method and extent of the proposed intrusion and the measures taken to minimise access to irrelevant and immaterial information.”
Amendment 691, in clause 161, page 125, line 11, after “specify”, insert “by name or description the person, persons or single set of premises to which it relates and”.
Amendment 702, in clause 161, page 125, line 15, leave out from “(2)” to end of subsection and insert
“and any specification must be in as much detail as is reasonably practicable”.
Amendment 692, in clause 161, page 125, line 15, leave out
“but the purposes may still be general purposes”
and insert
“; the descriptions must specify—
(a) the basis for the reasonable suspicion that the target is connected to a serious crime or a specific threat to national security,
(b) the manner in which all less intrusive methods of obtaining the information sought have been exhausted or can be shown to be futile.”
Amendment 703, in clause 161, page 125, line 17, leave out “may” and insert “must”.
Keir Starmer
I have already drawn considerable attention to clause 161(5), to which these amendments pertain. I have made my submissions. In the same manner in which I did not press earlier amendments and notwithstanding the importance I attach to these issues, I will not press the amendment.
The Solicitor General
I beg to move amendment 620, in clause 163, page 126, line 6, at end insert—
This drafting amendment is for consistency with clauses 127 and 143.
The Solicitor General
Briefly, these are minor drafting amendments that mirror drafting in an equivalent interception provision in clause 127. The amendment makes no changes to the bulk equipment interference regime itself. It is a minor discrepancy and we want to try to ensure drafting consistency as much as possible. We are mindful that the Committee has attached particular importance to that issue. Here is an instance of the Government making sure that in this example we are doing just as encouraged.
Amendment 620 agreed to.
Amendment made: 621, in clause 163, page 126, line 31, at end insert—
“This is subject to subsection (5).”—(The Solicitor General.)
This drafting amendment is for consistency with clauses 127 and 143
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I rise to speak to amendment 707, in clause 164, page 127, line 20, at end insert—
“(c) may only be made if the Secretary of State considers it proportionate to the operational purposes specified in the warrant.”
The Chair
With this it will be convenient to discuss the following:
Amendment 708, in clause 164, page 127, line 34, at end insert—
‘(8A) A minor modification—
(a) may be made only if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b));
(b) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.
(8B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.”
Amendment 709, in clause 164, page 127, line 34, at end insert—
‘(8C) In a case where any modification is sought under this section to which Clause [NC2 Items subject to legal privilege] or Clause [NC11 Confidential and privileged material] applies section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it).”
Keir Starmer
I have tabled a number of amendments to modification provisions throughout the Bill. The Minister has indicated that the Government are considering how the modification provisions will work throughout the Bill. In the circumstances, I will not press the amendment.
The Chair
Amendment not moved.
Amendments made: 622, in clause 164, page 127, line 42, leave out “(urgent cases)”
This amendment is consequential on amendment 623.
Amendment 623, in clause 164, page 127, line 43, leave out from beginning to “the” in line 2 on page 128 and insert—
‘( ) If it is not reasonably practicable for an instrument making a major modification to be signed by the Secretary of State, the instrument may be signed by a senior official designated by the Secretary of State for that purpose.
( ) In such a case, the instrument making the modification must contain a statement that—
(a) it is not reasonably practicable for the instrument to be signed by the Secretary of State, and
(b) ”—(Mr John Hayes.)
This amendment enables an instrument making a major modification of a bulk equipment interference warrant to be signed by a senior official in any case where it is not reasonably practicable for the Secretary of State to sign it.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I rise to speak to amendment 712, in clause 169, page 132, line 3, at end insert—
‘(3A) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an international information sharing treaty.”
This familiar amendment would ensure that data can be shared with overseas authorities only in accordance with the terms of an international information-sharing treaty. It is the same as an amendment I tabled to a similar clause, so I will not rehearse the arguments in favour of it. I will not press the amendment.
Mr Hayes
These minor drafting amendments are self-explanatory.
Amendment 624 agreed to.
Amendment made: 625, in clause 170, page 132, line 14, after “warrant”, insert “for examination”—(Mr John Hayes.)
This amendment makes a minor drafting correction.
Question put, That the clause, as amended, stand part of the Bill.
Joanna Cherry
Part 7 of the Bill deals with bulk personal dataset warrants. In common with our position on other bulk powers in the Bill, the Scottish National party wishes the powers in part 7 to be removed from the Bill until such time as a convincing operational case has been made by the Government; that should be by way of an independent review of the necessity and proportionality of these powers.
The power to acquire bulk personal datasets does not currently exist. These are essentially databases held by either the private or the public sector. They are defined in the clause as,
“a set of information that includes personal data relating to a number of individuals”
where
“the nature of the set is such that the majority of the individuals are not, and are unlikely to become, of interest to the intelligence service”.
This is where our concern lies. The powers in this part of the Bill will afford the opportunity and the power to recover huge amounts of personal information, largely relating to private citizens who are innocent and not under any suspicion whatsoever. Bulk personal datasets will cover both manual and electronic records. So, for example, they will cover medical records. The definition given of personal data is a broad one. It,
“has the same meaning as in the Data Protection Act 1998 except that it also includes data relating to a deceased individual”.
The acquisition, retention and examination of these databases will be governed by a warrant system similar to the one we have just considered for bulk interception and bulk hacking. The warrants will be issued under the double-lock system. The Committee has had detailed submissions on the SNP’s position on double-lock systems so I will not take time discussing that unnecessarily.
Part 7 talks about class warrants and specific bulk warrants. Class warrants concern applications for descriptions of personal data—for example, health data or travel data. Under the terms of the Bill that is the default type of bulk personal dataset warrant. Both the Joint Committee and the Intelligence and Security Committee recommended that class bulk personal datasets be removed from the Bill, yet they remain. The Intelligence and Security Committee reported that the acquisition, retention and examination of any bulk personal dataset is sufficiently intrusive that it should require a specific warrant, and I would say there is considerable force in that argument. It is instructive to look at what the Chair of the Intelligence and Security Committee said about part 7 and bulk personal datasets in his speech on Second Reading. It is sometimes represented as a full retreat from the position of the Intelligence and Security Committee, but that would be a misunderstanding. The right hon. and learned Member for Beaconsfield (Mr Grieve) said:
“The third issue is that the Committee expressed concern about the process for authorising the obtaining of bulk personal datasets. It is undoubtedly necessary and proportionate that agencies should have the power to obtain them”—
That is his view, not mine—
“because they can be vital to their work in helping to identify subjects of interest, but they largely contain private information on large numbers of people of no relevant or legitimate interest to the agencies at all”.
There was an intervention at that stage, but he went on to say:
“Intrusiveness needs to be fully considered as part of the authorisation process, which was why the Committee recommended that that could be done far better if class-based authorisations were removed from the Bill and a requirement made that Ministers should authorise the obtaining and periodic retention of each dataset”.—[Official Report, 15 March 2016; Vol. 607, c. 838-9.]
I have no doubt that the shadow Minister will have more to say about this aspect, but I draw attention to it at this stage because while my party’s opposition is based on the fact that we would like to see this part of the Bill removed completely until a convincing operational case has been made, there are others who, although content with aspects of it, have expressed severe reservations about the class warrants.
Keir Starmer
I endorse much of what the hon. and learned Lady said, and I will not repeat it. These are very wide powers. As she pointed out, they are probably the widest of the bulk powers, because the Bill makes it clear that the nature of the set is such that the majority of individuals are unlikely to become of interest to the intelligence service in the exercise of its functions. So we are talking about some of the widest powers. I acknowledge that this legislation would put existing powers on to a clear statutory footing, and that is welcome for the same reasons that I have outlined on other occasions. However, scrutiny is needed when powers that were not avowed in the past are first avowed and then put on to a statutory footing.
Clause 174(2) says:
“‘personal data’ has the same meaning as in the Data Protection Act 1998”.
In that sense, it is consistent with the way in which personal data are dealt with in other legislation. The Information Commissioner’s Office provides guidance on the meaning of personal data. Just so that this can be clear for all Committee Members and for the record, according to the guidance issued by the Information Commissioner’s Office:
“Personal data means data which relate to a living individual who can be identified—
(a) from those data, or
(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,
and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual”.
So it is the data themselves, and it is a wide range of data. It is any expression of opinion about that individual, and any indication of the intentions of the data controller.
One of the examples that the Information Commissioner gives is:
“A manager’s assessment or opinion of an employee’s performance during their initial probationary period will, if held as data, be personal data about that individual. Similarly, if a manager notes that an employee must do remedial training, that note will, if held as data, be personal data.”
That is very wide-ranging. There is a tendency in these debates to think that data are simply numbers or locations—specific hard pieces of data—but here we are talking about opinions about individuals.
Lucy Frazer (South East Cambridgeshire) (Con)
I am conscious of people’s sensitivity about their personal data, particularly sensitive data, but does the hon. and learned Gentleman think that we ought to consider this issue in the context of the legislation? These data are there to be used for a specific investigatory purpose, and only that purpose. They are not meant to be used for any other purpose. Indeed, if they are used and disclosed, there are very many provisions about unlawful disclosure and the serious criminal penalties for that, which we examined at the beginning. Is that not the safeguard for people that we need to distinguish the use and abuse of material that is collected?
Keir Starmer
I am grateful for that intervention. There is a particular sensitivity about health and mental health records. The very fact of their being retained, examined and filtered—because that is what will happen—is of huge concern to many people. That is why the amendments suggest that they be either excluded or subject to a higher test to prove that it is really necessary. Although it was not formal evidence, the Committee had a briefing session with the security and intelligence services where the question arose whether they do in fact access health records. In those exchanges, the answer was, “No we don’t, at the moment.” When I asked why, in those circumstances, it was necessary to have this power, the answer was: “Because we can’t rule out that at some future date it might be necessary to get these records, in circumstances that we cannot foresee at the moment—so we would not want to restrict the ability to get them.”
That was an honest answer about the way that these records are dealt with. In formal evidence, the answer was that the internal guidance does subject accessing mental health records to a higher threshold. In a sense, the agencies have thought this through for themselves. They have recognised the extra sensitivity of such records and have their own internal processes to make sure that they are applying a higher test. That is a good approach.
Joanna Cherry
I remember the evidence that the shadow Minister alluded to. Does he agree with me that, notwithstanding the fact that agencies are telling us that they take steps to be more sensitive in relation to mental health data, the very fact that mental health data are going to be scooped up and available to others may act as a disincentive to certain members of the public to seek assistance with their mental health problems?
Keir Starmer
I am grateful for that intervention. I am concerned about that issue; that is why we need to give particular care and attention to the operation of these bulk powers in relation to sensitive personal data—and mental health data are among the most sensitive. In a sense, the second set of modifications that we will come to later is aimed at putting in the Bill what is in fact current practice. Therefore it would not inhibit what the security and intelligence services are doing, but would make it clear to citizens that a safeguard is in place and reduce their anxiety about the extent of the use of these bulk powers.
I will say more about that when I get to the amendments, but they are issues that go to the breadth of the bulk personal datasets that we are now dealing with.
Mr Hayes
On the issue of medical records and the very sensitive data associated with them, and mindful of the remarks of the hon. and learned Lady and the hon. and learned Gentleman, we will be dealing with that issue when we discuss amendment 715. I do not want to spend too much time on it now, except to say that I, too, am aware of the obvious and profound issues associated with intrusion in that area. We will discuss them at greater length when we discuss the amendment, but I hear what is said. It is important that we study those matters with appropriate care, given that they are of such profound sensitivity.
Moving to the thrust of the argument and the content of the debate, the thrust of the argument is in two parts. First, why do we have this power and how is it used? Secondly, what are the safeguards—the measures in the Bill and those that already exist—that constrain the exercise of those powers, in the ways we all want, in the interests of good practice, privacy and so on? Let us deal with those in turn.
To deal with the first, it might be appropriate to start with the ISC, because it has been cited. It said in its privacy and security report that the powers in part 7 of the Bill are an
“increasingly important investigative tool for the Agencies”.
It is important to point out that this part of the Bill does not provide any powers to the security and intelligence agencies. Bulk personal datasets may be acquired through investigatory powers such as interception and they may be shared by Government Departments or industry. The only purpose of part 7 is to ensure that where agencies hold bulk personal datasets, the data are subject to robust privacy safeguards as information acquired under the bulk powers in the Bill. That is an important new step and an important safeguard.
It is probably fair to say that, in that sense, this is not a power at all but a process. The powers are about the safeguards. The Bill introduces important new requirements in that sense, but it would be more accurate to describe bulk personal datasets as a matter of process and a matter of practice rather than as a power.
The reason that that information is stored in such a way is pretty clear. It can help to identify individuals who threaten our national security or may be of other intelligence interest and, significantly, to eliminate suspicion of the innocent without using more intrusive techniques. As with so many of the bulk issues that we have debated, that is often about the use of techniques that are, by their nature, subject to stringent safeguards and that obviate the need to use more intrusive methods to reach the same destination. Of course, that can establish links between subjects of interest to better understand a subject of interest’s behaviour and, in the course of an investigation, we can verify facts that lead us to identify those who seek to do us harm.
It is simply the case that the security and intelligence agencies would not be able to keep pace with the scale of events that are occurring in an increasingly interconnected world if we did not have access to those datasets. It would take longer to exploit lead intelligence and increase the risk of something being missed or misunderstood. It would lead to intelligence failures and, in the worst cases, to the loss of life.
It is unquestionably the case that curbing the use of bulk personal datasets would hinder the agencies, but I would go further. I think it is fair to say that doing so would endanger this country and its people. I know that that is not the intention of anyone on this Committee or anyone considering the Bill, but it is important to emphasise that these are powers for a purpose, and that purpose is the safety of the British people through the effectiveness of those missioned to keep them secure.
Lucy Frazer
Does my right hon. Friend think that sometimes putting tests in very specific terms in primary legislation gives a certain rigidity, whereas greater flexibility would be possible if they were in a code of practice? As we heard—as the hon. and learned Member for Holborn and St Pancras said—the test is already being carried out in practice. Does my right hon. Friend agree that to create additional rigidity by putting the test in primary legislation might hamper the security services in due course?
Mr Hayes
With a certain power of prophecy, I made it known at the beginning of our considerations that it was likely that there would be a continuing debate that would have at its heart, considerations about what should be on the face of the Bill and what should be in supporting documentation. I did so perhaps not so much as a prophet as an experienced Member of this House, because I have never served, either as a shadow Minister or as a Minister, on any Bill Committee where that has not been a matter of debate. How far one goes in putting specific matters on the face of legislation is always a matter of fine judgment. Hon. Members know the argument very well.
Sir Simon Burns (Chelmsford) (Con)
My right hon. Friend raises a very important point. All too often, too many people have a tendency to put things on the faces of Bills that are not altogether relevant and which could be done by secondary legislation. His point, therefore, is extremely valid.
Mr Hayes
My right hon. Friend, who is a distinguished Member of this House, a former Minister of note, a sagacious figure now on the Back Benches, bringing that experience and quality to our considerations—what a delight it is to have him join us on this Committee—is right.
I was responding to my hon. and learned Friend the Member for South East Cambridgeshire accordingly that the debate about whether material is put in the Bill or in supporting documentation comes down to this point: those who wish to place things in the Bill do so because they want to firm them up, to make them more sure and certain. Of course, for much of what we wish to do it is vital that we pursue that course. Those who argue for material in supporting documentation do so on the basis exactly as my right hon. Friend says: that it allows greater flexibility. In an area as dynamic as this—I hinted at this earlier, but will make the point once more—I would have thought the argument for flexibility holds a great deal of water.
The last thing I want is to pass the Bill into law and for it to become an Act of which we can all be justly proud—every member of the Committee will deserve a certain credit—only to find that events have moved on and we are stuck with an excessively rigid Act incapable of being changed easily as needed.
Keir Starmer
Just to put this in context, when we talk about legal professional privilege, journalistic material and MPs’ correspondence, it is absolutely clear the Government have thought this through and put it on the face of the Bill, where they think it is relevant. We cannot get away with it—nobody can backslide into an argument that, in other areas, it is more flexible to put the measures in statutory instruments. Things like legal professional privilege have been thought through. Moves have been made by the Government—and I have acknowledged them—and it should be on the face of the Bill. I think the Minister knows that, because he has put it in the Bill in other areas and that is the right way to deal with that sort of material. Of course, it is more flexible, but in the end we would have a very thin, short, one section Act if we really wanted full flexibility. That is not the way forward.
Mr Hayes
The hon. and learned Gentleman is right. I do not want to be patronising in any way. I think for a beginner he has made a very promising start. That has been in part characterised by the consistency of his argument. One of the arguments he has used since we began this consideration is that the Bill needs, throughout its clauses, to be consistent. He is right in saying that, while we have made considerable progress in considering and dealing with the issue of the legal profession, there may be more work to do in respect of journalists and Members of Parliament.
With that thought—I do not want to exhaust the patience of the Committee any longer—I will sit down.
Question put, that the clause stand part of the Bill.
Keir Starmer
I beg to move amendment 721, in clause 177, page 136, line 21, leave out subsection (3)(a)(iii).
The Chair
With this it will be convenient to discuss amendment 722, in clause 178, page 137, line 25, leave out subsection (5)(a)(iii).
Keir Starmer
I foreshadowed these amendments when we were discussing clause 174. The way we have sought to deal with records—“patient information”, as it is defined under the National Health Service Act 2006—is to take them out of consideration altogether, which would prevent a warrant that would cover those records being issued. Amendment 721 simply leaves out subsection (3)(a)(iii) and amendment 722 removes the corresponding subsection in clause 178. There is very little I can add to the argument that I put before in relation to those. I will say more when we get to the second group of amendments about the test that is to be applied.
Mr Hayes
The hon. and learned Gentleman may take it, in the spirit that I made my earlier remarks, that the Government are always happy to consider these matters carefully. All of this section of the Bill requires us to be mindful of the sensitivity of the material with which we are dealing, and I think the purpose of the amendment is to explore that sensitivity—I understand that. While I am not minded to accept the amendments, I am clear that in gauging all of those things, we are open to argument, willing to listen and determined to frame a Bill that reflects the considerations of the Committee, that is capable of uniting this House in a shared purpose, that is credible with the wider public, and that provides those missioned to keep us safe with the powers they need. With that reassurance, I hope the hon. and learned Gentleman will withdraw his amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 715, in clause 177, page 136, line 43, at end insert—
“(5) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”
The Chair
With this it will be convenient to discuss the following:
Amendment 718, in clause 177, page 136, line 43, at end insert—
“(5) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(6) The Secretary of State may issue the warrant only if they consider that—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
Amendment 716, in clause 178, page 138, line 2, at end insert—
“(8) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”
Amendment 719, in clause 178, page 138, line 2, at end insert—
“(8) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(9) The Secretary of State may issue the warrant only if they consider that—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
Amendment 717, in clause 192, page 147, line 36, at end insert—
“(5A) A direction under subsection (3) may not be made for material relating to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.”
Amendment 720, in clause 192, page 147, line 36, at end insert—
“(5A) A direction under subsection (3) may only be made for material relating to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012 if the Secretary of State considers that—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of such material; and
(b) that specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
Keir Starmer
These amendments are on material relating to patient information as defined in section 251(10) of the National Health Service Act 2006 or to mental health, adult social care, child social care or health services as defined by the Health and Social Care Act 2012. They would subject material in those categories to the higher test set out in amendment 718. We have had interventions on what the test should be, why people should be concerned and so on.
A number of Committee members will have had the opportunity—I have, in my work—to see mental health records, adult social care records, child social care records and health service records. Those records often contain highly confidential material and information. I will take an example from child social care. A child may be reporting and having recorded some of the most grotesque offences that have happened to them, in an environment where it is hoped that the right relationship will be built up through the process of child social care—in other circumstances, adult social care—so that they obtain the best care possible. Persuading people into that sort of relationship, so that they can get the support they need, is not easy, as anyone who has experience in this area will know.
Unless those who are most vulnerable see protection for them on the face of the Bill, there is a real likelihood that they will not feel sufficiently protected to even come forward. Getting children to engage with child social care is the devil’s own business in many difficult cases. There are many reasons why children do not engage. If children, vulnerable adults and those with mental health problems cannot see clear protection on the face of the Bill that applies to them—not in a flexible way—it would be a retrograde step in relation to all the good work going on in other parts of the forest on offences such as child sexual exploitation.
To be clear, the amendments are not intended to prevent the security and intelligence services from accessing those records if, in certain circumstances, they are needed. The amendments require that a higher threshold is applied and that a better case is made for the circumstances being exceptional and compelling. As I am sure the Minister for Security and Solicitor General have observed, the language in the amendments is borrowed from the protection in the Bill elsewhere for legally privileged material. I therefore hope the test is workable and applicable to this sensitive information.
I stress just how sensitive the material within some of these records will be and how important it is that people see on the face of the Bill protection for them. I have heard the way the Minister for Security and Solicitor General have dealt with this, and I will listen to what they say now, but I do not think that what is said about this protection in the code of practice is either in the right place or sufficient. Paragraph 4.11 is very general in its guidance, even in the code of practice. In my argument, the test should be set out in the Bill and then the code of practice would give guidance as to how the test is to be applied on a day-to-day basis as and when it arises.
Mr Hayes
The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.
Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.
The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.
That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.
Joanna Cherry
The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?
Mr Hayes
I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.
Keir Starmer
I am grateful to the Minister and glad he finds the amendment persuasive, although I suspect not persuasive enough to vote for it. I will therefore withdraw it, but I appreciate the spirit in which he makes his submissions in this important and sensitive area. I will withdraw it with a view to working with the Minister to see whether—
Mr Hayes
I think the hon. and learned Gentleman has said this, but just for the record, I think he agrees with me—I am delighted he is going to withdraw his amendment—that it is conceivable that there are circumstances in which access to some health data might be helpful to the agencies. We can agree that as a baseline against which we can chart the rest of this process.
Keir Starmer
From memory, the services could not at the moment envisage a circumstance in which they would need it, but they would not want to rule out the possibility that it might arise at a future date.
The Solicitor General
An example could be a group of terrorists who are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E—could be relevant to that particular operation. That is the sort of category that we are thinking of.
Keir Starmer
That may well be. I listened carefully to the answer that was given—
Joanna Cherry
On the example that the Solicitor General has just given, does the hon. and learned Gentleman agree that such information could be obtained with a far more targeted warrant?
Keir Starmer
It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.
The Solicitor General
I can clarify: let us imagine a scenario where there is an unidentified individual or we do not know the identities of the people. We know that an atrocity has taken place, but we do not have names, so targeting is more difficult. It is an exceptional case, but there is that possibility.
Keir Starmer
These are all hypotheticals. I think the services themselves have said that they have not needed such powers yet, and we can speculate as to what the situation might be. However, I accept as a general proposition that the focus ought to be on the threshold test for accessing information. For the record, in relation to adult and child social care, there would be a concern not only for the vulnerable adult and child but among those providing the care, because they will be expressing their opinions in these reports and they would be concerned that that remained confidential. That highlights why we need to work on this position. However, for the time being, I look forward to that work and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
I rise to speak to amendment 723, in clause 179, page 138, line 5, leave out from “must” to “the” in line 6 and insert “determine”.
The Chair
With this it will be convenient to discuss the following:
Amendment 724, in clause 179, page 138, line 22, leave out subsection (2).
Amendment 534, in clause 179, page 138, line 23, at end insert
“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.
This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.
Keir Starmer
These familiar amendments deal with the judicial test, which crops up on a number of occasions in the Bill. In the light of our ongoing discussion about the test, I do not intend to press the amendments.
The Chair
The amendment is not moved.
Question put, That the clause stand part of the Bill.
Keir Starmer
I rise to speak to amendment 725, in clause 180, page 138, line 41, leave out from second “period” to second “the” in line 42 and insert “of 48 hours after”.
The Chair
With this it will be convenient to discuss the following:
Amendment 726, in clause 180, page 138, line 41, leave out from second “period” to second “the” in line 42 and insert “of 24 hours after”.
Amendment 730, in clause 184, page 141, line 10, leave out from “period” to end of line and insert
“of 48 hours after the”.
Amendment 731, in clause 184, page 141, line 10, leave out from “period” to end of line and insert
“of 24 hours after the”.
Amendment 732, in clause 184, page 141, line 12, leave out “6 months” and insert “1 month”.
Amendment 713, in clause 187, page 143, line 29, leave out from second “period” to second “the” in line 30 and insert “of 48 hours after”.
Amendment 714, in clause 187, page 143, line 29, leave out from second “period” to second “the” in line 30 and insert “of 24 hours after”.
Keir Starmer
In the light of our discussions about the urgent provisions, which are similar throughout the Bill. I will not press the amendments.
Keir Starmer
I rise to speak to amendment 727, in clause 181, page 139, line 10, leave out “may” and insert “must”.
Again, I will not press this amendment as it is in a similar form to an amendment to another part of the Bill.
The Chair
The amendment is not moved.
Amendment made: 628, in clause 181, page 139, line 32, at end insert—
‘(7A) An intelligence service is not to be regarded as in breach of section 175(1) or (2) where it retains or (as the case may be) examines a bulk personal dataset in accordance with conditions imposed under subsection (3)(b).”—(Mr John Hayes.)
See the explanatory statement for amendment 626.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I rise to speak to amendment 728, in clause 183, page 140, line 35, leave out from “178(5)(a)” to end of line and insert
“and the purposes must be specified in as much detail as is reasonably practicable”.
The Chair
With this it will be convenient to discuss amendment 729, in clause 183, page 140, line 36, leave out “may” and insert “must”.
Keir Starmer
The amendments, like earlier amendments, would require more specific operational purposes. In light of the discussions and exchanges we had earlier, I will not move the amendment.
Keir Starmer
I rise to speak to amendment 733, in clause 186, page 142, line 31, at end insert—
“(c) may be made only if the Secretary of State considers that it is necessary for the purposes of the warrant”.
The Chair
With this it will be convenient to discuss amendment 527, in clause 186, page 143, line 16, at end insert—
“(12) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 179.”.
This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.
Keir Starmer
We are in the familiar territory of modifications; the provisions of clause 186 are very similar to others that we have covered in great detail. For those reasons, I shall not move the amendment.
The Solicitor General
I beg to move amendment 629, in clause 186, page 143, line 9, leave out “(urgent cases)”.
This amendment is consequential on amendment 630.
The Solicitor General
The amendments will make it possible for an instrument that makes a major modification to a bulk personal dataset warrant, to add or vary an operational purpose, to be signed by a senior official as a provision for situations in which it is not reasonably practicable for the Secretary of State to sign it. The amendments are very similar to others we have made. Obviously the Secretary of State will make the decision, but in his or her absence an official will be authorised to sign the instrument. I therefore commend the amendment to the Committee.
Amendment 629 agreed to.
Amendment made: 630, in clause 186, page 143, line 10, leave out from beginning to “the” in line 15 and insert—
“( ) If it is not reasonably practicable for an instrument making a major modification to be signed by the Secretary of State, the instrument may be signed by a senior official designated by the Secretary of State for that purpose.
( ) In such a case, the instrument making the modification must contain a statement that—
(a) it is not reasonably practicable for the instrument to be signed by the Secretary of State, and
(b) ”.—(The Solicitor General.)
This amendment enables an instrument making a major modification of a warrant under Part 7 to be signed by a senior official in any case where it is not reasonably practicable for the Secretary of State to sign it.
Question put, That the clause, as amended, stand part of the Bill.
The Solicitor General
I beg to move amendment 631, in clause 192, page 147, line 37, after “that”, insert “—
(a) ”
This amendment is consequential on amendment 632.
The Solicitor General
I will deal as succinctly as possible with the amendments, which I think will gain Members’ support. They will ensure that a direction by the Secretary of State that is approved by a judicial commissioner cannot disapply the prohibition on the disclosure of an intercept warrant or any intercepted material. The clause relates to bulk personal datasets obtained by a security and intelligence agency using a capability for which a warrant or other authorisation was issued or given up under another part of the Bill: for example, via the intercept provisions.
The clause provides that, in such cases, the intelligence agency can apply to the Secretary of State for a direction, which has the effect of applying this part—part 7—to the bulk personal dataset. For example, if an agency intercepts an email that has a bulk personal dataset attached and the agency wants to retain and examine that information as a bulk personal dataset, it can apply for a direction to that effect to the Secretary of State. The judicial commissioner must then approve that before it takes effect.
Subsection (6) as drafted states that it is not possible to disapply clause 48, which excludes material identifiable as intercept, from legal proceedings, unlike schedule 3, which provides exceptions to that exclusion. Therefore, a bulk personal dataset that is acquired by interception will always be subject to those provisions, even if a direction is given to apply the safeguards in part 7. The amendments make it explicit that it is not possible to disapply clauses 49 to 51 in such circumstances, either. The clauses together mean that it is an offence to make unauthorised disclosure of the existence of an intercept warrant or any intercepted material.
The clauses relating to the restrictions around the disclosure of material obtained under interception warrants have already been considered by the Committee. The amendments ensure that the restrictions continue to be mandatory, where applicable, to a bulk personal dataset that is subject to a clause 192 direction. Although without the amendments the Secretary of State could choose not to disapply the restrictions on a case-by-case basis, we believe that it is appropriate that that is mandatory, given that they relate to authorised disclosures and criminal liability for such a disclosure.
The clause also allows the Secretary of State the power to vary directions given under the clause, but as drafted it does not explicitly require judicial commissioner approval of such a variation. We are therefore tidying that up and making it explicit that a double lock of judicial commissioner approval will apply to the varying of a direction as well as the original direction. Therefore, once again we are paying close attention and ensuring that the safeguards on the Bill are robust in every possible respect.
Amendment 631 agreed to.
Amendments made: 632, in clause 192, page 147, line 40, at end insert—
“(b) where sections49 to51 applied in relation to the bulk personal dataset immediately before the giving of the direction, they continue to apply in relation to it with the modification that the reference in section50(6)(a) to the provisions of Part 2 is to be read as including a reference to the provisions of this Part.”
This amendment provides that, where the Secretary of State gives a direction under Clause 192(3) with the effect that Part 7 applies to a bulk personal dataset obtained under a warrant issued under Part 2 of the Bill, the direction must ensure that clauses 49 to 51 of that Part continue to apply in relation to the disclosure of the bulk personal dataset (with a modification to ensure that certain disclosures made in connection with the giving of legal advice about Part 7 are excepted disclosures for the purposes of Clause 49).
Amendment 633, in clause 192, page 148, line 8, at end insert—
‘(10A) Subsections (7) to (9) apply in relation to the variation of a direction under subsection (3) as they apply in relation to the giving of a direction under that subsection.” —(The Solicitor General.)
This amendment provides that a direction under Clause 192(3) may be varied by the Secretary of State only with the approval of a Judicial Commissioner.
Question put, That the clause, as amended, stand part of the Bill.
Investigatory Powers Bill (Thirteenth sitting)
Thursday 28th April 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Before we start our line-by-line scrutiny, I want to make a couple of announcements. First, I remind the Committee that for amendments to be eligible for consideration on Tuesday, they must be tabled in the Public Bill Office by the rise of the House today; I am not sure what time the House is rising. People should be aware of that. After the Committee adjourned on Tuesday, it became clear that the Question that clause 187 stand part of the Bill had not been put. I am sorry for that oversight. The appropriate course is for us to rectify the matter and to put the Question now.
Clause 187
Approval of major modifications made in urgent cases
Question put, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 741, in clause 194, page 148, line 36, at beginning insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
The Chair
With this it will be convenient to discuss the following:
Amendment 742, in clause 194, page 148, line 40, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of sub-paragraph (1) of subsection (2B) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (2B)(a) and (b);
(f) human rights as defined in section 9(2) of the Equality Act 2006.”
Amendment 743, in clause 194, page 149, line 23, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
Amendment 744, in clause 194, page 149, line 31, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
Amendment 753, in clause 196, page 150, line 21, leave out “Commissioner” and insert “Commission”.
Amendment 754, in clause 196, page 150, line 38, leave out “Commissioner” and insert “Commission”.
Amendment 755, in clause 196, page 151, line 18, leave out “Commissioner” and insert “Commission”.
Amendment 756, in clause 196, page 151, line 41, at end insert—
“(4A) The powers and functions specified in this Part will be exercised by the Inspectors under the supervision of the Investigatory Powers Commissioner, except in so far as those powers are powers of the Judicial Commissioners specified in Parts 1 to 8 of this Act.”
Amendment 749, in clause 196, page 151, line 43, after “Commissioner”, insert “or Inspector”.
Amendment 757, in clause 197, page 152, line 28, leave out “Commissioner” and insert “Commission”.
Amendment 758, in clause 197, page 152, line 35, leave out “Commissioner” and insert “Commission”.
Amendment 789, in clause 199, page 154, line 11, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 790, in clause 199, page 154, line 18, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 794, in clause 200, page 154, line 34, leave out “Commissioner” and insert “Commission”.
Amendment 795, in clause 200, page 154, line 34, leave out “and the other” and insert “, the”.
Amendment 796, in clause 200, page 154, line 35, after “Commissioners”, insert “and Inspectors”.
Amendment 797, in clause 200, page 154, line 41, leave out “Commissioner” and insert “Commission”.
Amendment 798, in clause 201, page 156, line 38, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 799, in clause 201, page 156, line 41, leave out “Commissioner” and insert “Commission”.
Amendment 800, in clause 201, page 156, line 47, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 802, in clause 201, page 157, line 7, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 803, in clause 201, page 157, line 11, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 816, in clause 202, page 157, line 43, leave out “Judicial Commissioner” and insert “the Investigatory Powers Commission”.
Amendment 817, in clause 202, page 157, line 44, leave out “Commissioner” and insert “Commission”.
Amendment 818, in clause 202, page 157, line 45, leave out “Commissioner’s” and insert “Commission’s”.
Amendment 829, in clause 202, page 158, line 1, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 819, in clause 202, page 158, line 1, after “Commissioner” insert “or Inspector”.
Amendment 820, in clause 202, page 158, line 4, after “Commissioner” insert “or Inspector”.
Amendment 821, in clause 202, page 158, line 8, after “Commissioner” insert “or Inspector”.
Amendment 822, in clause 202, page 158, line 10, leave out “Commissioner’s” and insert “Commission’s”.
Amendment 823, in clause 202, page 158, line 15, leave out “Commissioner” and insert “Commission”.
Amendment 825, in clause 204, page 158, line 39, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.
Amendment 826, in clause 204, page 158, line 40, after “such”, insert “funds”.
Amendment 827, in clause 204, page 158, line 40, after “determine”, insert—
“necessary for the purposes of fulfilling the functions of the Investigatory Powers Commission under this Part”
Amendment 828, in clause 204, page 158, line 41, leave out subsection (2) and insert—
“(2) In determining the sums to be paid to the Investigatory Powers Commission pursuant to subsection (1), the Treasury shall consult the Investigatory Powers Commissioner.”
Amendment 830, in clause 204, page 158, line 42, leave out “Commissioner” and insert “Commission”.
Amendment 831, in clause 204, page 158, line 43, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.
Amendment 832, in clause 204, page 159, line 3, leave out “Commissioners’” and insert “Commission’s”.
New clause 19—Funding, staff and facilities of Intelligence and Surveillance Commission—
“(1) The Treasury must, after consultation with the Intelligence and Surveillance Commission as to number of staff and in light of the extent of the statutory and other functions of the Commission, provide the Commission with funds to cover—
(a) such staff, and
(b) such accommodation, equipment and other facilities, as necessary for the carrying out of the Commissioners’ functions.
(2) The staff of the Intelligence and Surveillance Commission must include—
(a) independent technical experts, and
(b) independent legal experts.”
This new clause would require the Treasury to provide the ISC with funds to cover its staff, facilities and accommodation. It would also require that the ISC staff include technical and legal experts.
Keir Starmer
We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.
There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,
“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”
That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.
Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?
This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.
I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.
The Solicitor General (Robert Buckland)
I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.
The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.
Keir Starmer
Is there a breakdown of the £500,000, given that this is, in broad terms, a structural proposal, rather than a numbers proposal ?
The Solicitor General
The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.
The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.
Joanna Cherry
The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?
The Solicitor General
I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.
I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.
While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.
There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.
There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:
“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”
I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.
Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.
Joanna Cherry
I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?
The Solicitor General
I respect the hon. and learned Lady’s point. I answer it by making the important point that we have stronger oversight if the body is able to look at everything from initial authorisation right through to implementation. The dialogue that can occur will therefore be much more immediate and focused, because the body will have a fuller and deeper understanding of the process. We end up with a body that is independent and flexible and will gain the public confidence that she and I want it to.
The worry is that if we pursue the attractive—seductive, almost—course proposed by the hon. and learned Lady and others and separate the powers, we will end up breaking the important links between the executive and judicial functions epitomised by the Bill. I say “links” in a neutral sense, and not in the sense that one can unduly influence the other—far from it. Rather, the Bill allows for the check-and-balance approach that epitomises the British constitution and its organic development over the centuries in a modern and relevant way. As a Tory, I am proud to stand here and argue for those values.
I want to deal with the Investigatory Powers Commissioner’s functions and the amendments seeking direct negotiation with the Treasury, rather than the Secretary of State, on the resources necessary for the commissioner to fulfil their functions. I think I am on safe ground in saying that my right hon. Friend the Home Secretary would warmly welcome not having to be involved in negotiations with the Treasury wherever possible, but I believe that removing his or her function from this negotiation would be an error.
There will be much more familiarity with the work of the IPC at the Home Office than at the Treasury, so the Home Office can make a far more accurate assessment of the resources that the IPC will need. That is important in ensuring that the IPC is properly resourced. Importantly, there can be meaningful challenge by the Home Secretary if they believe that the IPC is asking for too big a budget and is not providing proper value for money.
I do not think it is right or fair to say that the independence of the new IPC will be somehow compromised if it receives funding through a Secretary of State, because plenty of other non-departmental public bodies receive funding via that route, such as the Independent Police Complaints Commission and Her Majesty’s inspectorate of prisons. It is not an unusual or uncommon position, and we would have heard about it if there was an issue with the compromising of those bodies’ ability to act.
The Treasury has made clear in its guidance, “Managing public money”, that
“Functional independence is compatible with financial oversight”.
I am glad to say that the current oversight commissioners have repeatedly made clear in their annual reports that they have always been provided with enough money to undertake their functions. The same route of complaint will be available to the IPC, and I know that Parliament would take a keen interest if there was any suggestion by the new commissioner that the IPC was under-resourced. For those reasons, I respectfully ask Members to withdraw their amendments.
Keir Starmer
I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.
The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.
Joanna Cherry
The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.
Keir Starmer
I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.
The Chair
For clarity, we will divide on amendment 741 now. We will then go on to amendments 735, 736, 740, 737, 738 and 739, which the hon. and learned Gentleman may wish to discuss. If he feels like moving the others, he may do so at that time.
Keir Starmer
I am happy to do it in whichever way suits the Committee and the Chair.
The Solicitor General
We have prayed in aid Jo Cavan’s comments quite a lot, and I think it is interesting that she said:
“It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits.”
I am arguing that this is supervision of the agencies’ work, and that the hon. and learned Gentleman’s point would be stronger if it were purely about the commission itself.
Keir Starmer
I am grateful to have been reminded of Jo Cavan’s evidence. The Solicitor General is right: there is a mixture of functions, and the oversight has to operate in quite a flexible way in relation to the different functions. However, this is a structural issue, and I therefore press amendment 741 to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 735, in clause 194, page 148, line 36, leave out “Prime Minister” and insert “Lord Chancellor”.
Amendments 735 to 739 would require that Judicial Commissioners are appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission under the Constitutional Reform Act 2003.
The Chair
With this it will be convenient to discuss the following:
Amendment 736, in clause 194, page 148, line 36, after “appoint”, insert
“in accordance with the procedure set out in the Constitutional Reform Act 2003”.
See the explanatory statement for amendment 735.
Amendment 740, in clause 194, page 149, line 4, at end insert—
“(2A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) the Judicial Appointments Commission;
(b) the Judicial Appointments Board of Scotland; or
(c) the Northern Ireland Judicial Appointments Commission.”
Amendment 737, in clause 194, page 149, line 5, leave out subsection (3).
See the explanatory statement for amendment 735.
Amendment 738, in clause 194, page 149, line 12, leave out subsection (4).
See the explanatory statement for amendment 735.
Amendment 739, in clause 194, page 149, line 14, leave out subsection (5).
See the explanatory statement for amendment 735.
Keir Starmer
The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.
We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.
The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:
“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”
It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.
In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:
“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.
It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.
The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.
The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.
The Minister for Security (Mr John Hayes)
It is a pleasure to serve under your chairmanship as ever, Mr Owen. It is important, as we consider this part of the Bill, that we test some of its provisions in the way the hon. and learned Gentleman has.
The Government take this part of the Bill very seriously. Along with the safeguards added earlier in the Bill, oversight plays an important part in making sure that we have the checks and balances that we all seek. In that respect, there is space for an informed debate about the balance that we are seeking to achieve, as the hon. and learned Gentleman suggests. The roles of the Executive and of the judiciary, which we have already begun to explore in the brief debate to which my hon. and learned Friend the Solicitor General contributed, are central to those considerations.
Keir Starmer
I take the point that there is no point in people who have gone through the Judicial Appointments Commission process once going through it again. In fairness, we have put forward several options for the appointment process and, to be clear, I prefer the one in which, having consulted the Judicial Appointments Commission, the Lord Chief Justice, rather than the Lord Chancellor, makes appointments.
Mr Hayes
That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,
“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”
He said that
“I much prefer the model you have come up with”,
and finished by saying:
“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]
I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”
It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.
That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.
Joanna Cherry
I hear what the Minister is saying about the Government’s keenness to retain the involvement of the Prime Minister. Could his concerns be met and a compromise reached via amendment 740, which the Scottish National party support? It would retain the Prime Minister’s involvement and provide that he or she would make an appointment only following a recommendation by either the Judicial Appointments Commission, the Judicial Appointments Board for Scotland or the Northern Ireland Judicial Appointments Commission. Of course, as the Minister has reminded us, those bodies would be appointing from an existing pool of appointed judges, so it would not take up too much of their time; they would be considering people with whom they were already familiar. Is that the way forward? It is important to ensure that the Judicial Appointments Board for Scotland is involved, if not the Scottish Ministers, given the Scottish Ministers’ current responsibility for appointments to the Office of Surveillance Commissioners.
Mr Hayes
The hon. and learned Lady is right to interpellate in that way. There is certainly a good argument to be made for what she has just described, and I am not insensitive to it. However, I challenge more fundamentally the suggestion that the Prime Minister’s engagement—and, further, the Prime Minister’s engagement in the way that we have set out, rather than in the way that she has just described—would in some way be injurious to the independence that is critical for those involved in the oversight process.
Joanna Cherry
It will not be, provided that he or she appoints on the recommendation of the independent bodies. That is what we do at the moment for judges, both north and south of the border. In Scotland, the First Minister appoints judges to the supreme courts of Scotland on the recommendation of the Judicial Appointments Board for Scotland. In England and Wales, as I understand it—I am willing to be corrected—the Prime Minister makes his appointments on the recommendation of the Judicial Appointments Commission and the Lord Chancellor, but presumably they have gone through an independent judicial scrutiny process. Amendment 740 would simply replicate those procedures for the judicial commissioners. I do not understand what possible objection there could be.
Mr Hayes
The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.
Mr Hayes
I will give way to the hon. and learned Gentleman in a second, but I draw attention again to the Joint Committee’s view on the matter, because he quoted it. I think that we are reaching a common view on this; we are certainly journeying towards accord. The Joint Committee said:
“We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.”
In the witness sessions, former Home Secretaries made it clear that in their direct experience of similar matters, they had seen no sign of the judiciary being intimidated to the point of subservience when faced with the views of the Executive.
There is an argument for fine-tuning, and that is almost where the hon. and learned Member for Edinburgh South West is heading. There are a range of amendments in this group, and in a sense some are more radical than others, as the hon. and learned Member for Holborn and St Pancras has acknowledged. He and the hon. and learned Lady have placed some emphasis on, if I may put it this way, one or two of the more modest changes that have been suggested, and that is not falling on deaf ears on the Government Benches. However, I resist the fundamentalist view—not represented in this case, I think—that somehow the Prime Minister’s involvement is undesirable because it compromises judicial independence.
Christian Matheson
I will respond in a bipartisan way with an initial confession that I know little about judicial appointments. I wonder whether there are any others that have to go through the Prime Minister’s office. Perhaps the Minister can confirm that.
The appearance of things is perhaps a problem. If the Prime Minister is appointing the Secretary of State—let us say, for example, the Home Secretary—and the judges who comprise the second part of that double lock, it may appear that there is an apex, or apogee, leading to one place, rather than the two locks. It might be better for the process if there were an appearance of independence from those two sides.
Mr Hayes
Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.
On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.
Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.
Joanna Cherry
Does the Minister agree that, although there may be no suggestion that the current commissioners’ independence has been compromised, the appearance of independence is important for public confidence?
Mr Hayes
Imitation is the best form of flattery and I have already said that, so I take that contribution not as mere flattery but as a compliment. As the hon. and learned Lady will know, there is a big difference between being flattered and being complimented.
I do think that appearance matters. I do not want to go too far here, because the Solicitor General will have his views, and he is a man of fiercely independent mind on all these matters and speaks with great authority, which is why I am about to give way to him. However, I am not minded to be dogmatic, notwithstanding some of the fundamentals, which I think are important.
The Solicitor General
Having had experience of the JAC process myself, albeit for a junior judicial office, I think that the point is well made about the lack of necessity for renewal of approval by the JAC. However, this is not about that; it is about deployment of a judge to a particular office overseeing an Executive function. That is different from the appointment stage. This is deployment, which is why the Prime Minister should be involved.
Mr Hayes
Yes, and that is the point I was about to come on to: my hon. and learned Friend, with all his usual sharpness of mind, has anticipated what I was going to say about deployment being an organisational issue too, it being about the allocation of resource, and gauging such things as manpower and skills. Those are, in the terms he described, pretty important to the existing arrangements. One would hesitate to drive a coach and horses through that. I am not sure that that is intended, but there are risks associated with excessive radicalism as there are always risks associated with radicalism—I am just as Tory as my hon. and learned Friend.
Keir Starmer
The Solicitor General actually made a powerful case in favour of the amendments with his intervention, and I am reflecting on that. This is about choosing from a pool of judges who have all the necessary characteristics and competencies and deciding which of them will oversee the Secretary of State. That is a very powerful argument for saying that it should not be the Prime Minister for that deployment. I suppose what I am saying is this: what, over and above the other qualities that they have already proven, is needed in this case? There is the expertise; there is the knowledge of the area. Those are all matters that the Judicial Appointments Commission or the Lord Chief Justice would have strong views on, and probably better views than the Prime Minister, because they are closer to the judges on a day-to-day basis. What is special about this? It is a decision about which of these high-quality judges, with all the competencies, will oversee the Secretary of State. That is why the decision should not be with the Prime Minister.
Mr Hayes
I understand the point. The hon. and learned Gentleman will know that the Lord Chief Justice cannot appoint, because of creating what I described as patronage, but the Solicitor General’s point is that it is important that he can be involved, looking at deployment, for the reasons that we have both given.
In truth—I think it is fair to say this—the exact details of the appointment process, which the hon. and learned Gentleman seeks to explore further, are still under consideration. It is very important that all stakeholders are involved in designing an appropriate process. I am not sure that we would want to detail that in a Bill, as the hon. and learned Gentleman will understand, because this is a matter of judicial operational decisions as much as anything else.
I think we are getting to the place—perhaps in a slightly meandering way, but it is fairly late in our consideration of the Bill and a little opportunity to meander is always welcome, or perhaps not, as I can tell from your stern glance, Mr Owen—where we all agree that a balance needs to be struck between Executive involvement and judicial involvement. I think we are now getting to a place, notwithstanding that the amendments do not actually say this in the way they are grouped, where we agree that the Prime Minister needs to be involved to cement or secure that relationship between the Executive and the judiciary, and we are coming to a synthesis about the respective roles of some of the players.
At this juncture, having meandered, I can tell that you want me to draw my remarks to a swift conclusion, Mr Owen.
Lucy Frazer (South East Cambridgeshire) (Con)
Will my right hon. Friend the Minister give way?
Lucy Frazer
I have a residual concern, having been through a process, albeit not a judicial one, that was extremely lengthy and costly—appointment as a silk. I am aware of colleagues who are sometimes put off the judicial process for those two reasons, and I am slightly concerned, not necessarily about the appointer but about the process. Will members of the judiciary be willing to put themselves through a lengthy and costly process when they are already in that position?
Mr Hayes
My hon. and learned Friend makes a very good point and, at an earlier stage of consideration of the Bill, that issue was raised. Will there be enough of these people? Will they want to do the job? This is an important new responsibility. It can hardly be argued, as some outside this place and perhaps even some in this place have tried to do, that the Home Secretary cannot cope with the numbers of warrants, and then simultaneously say that these people will rush forward to consider these matters in the heat of the moment and the dead of night. My hon. and learned Friend is right to say that there is an issue about people being willing to play this part in the double lock, and I would not want in any way to be complacent about that. It is important that the system is sufficiently streamlined, but rigorous, to ensure that people can practically do what we ask of them—she is right to make that point.
The difference between us now seems to be probably a slightly more refined version of what the amendments suggest. The difference now boils down to when and how the Prime Minister is involved, and on what basis he is involved in respect to the advice that he is given. We have already amended the Bill to make it clear that the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland will be consulted, as the hon. and learned Member for Edinburgh South West said. Therefore, there has been some movement in the direction of those who felt that the measure needed to be more balanced; but, the hon. and learned Lady and, I think, the hon. and learned Member for Holborn and St Pancras are now saying that we need to recalibrate it one more time. We will not accept the amendments at this juncture, but I hope that both the content and the tone of what I have said will have suggested to all concerned that we are not unresponsive to these matters of detail and no doubt there will be further opportunity to discuss them.
Keir Starmer
I think this has been an occasion on which there has been a willingness on both sides to adapt, or look again at, their positions. Having listened to the debate, I think there is a powerful argument for saying that the Judicial Appointments Commission and its full process should not apply. One reason is that a judge has been through it and there is no need to retest their competencies. These are going to be very senior members of the judiciary and, almost certainly, from the smaller group within that who have experience handling the sort of material they need to handle to carry out the function of the judicial commissioner. That is going to be a small group of judges, and probably those who have sat on the Special Immigration Appeals Commission and dealt with other similar types of procedures. This is a question about which of those judges, who have all those competencies and experience, should oversee some of the functions of the Secretary of State. It is troubling, from an appearance point of view if nothing else, if the Prime Minister acts by consulting only the Lord Chief Justice.
Keir Starmer
In a moment I will, but I shall just finish my point. I know the Lord Chief Justice and I can imagine how that consultation would go. He would make a very powerful case and would not easily be dissuaded from his candidate.
I was going to press the amendment, but I am now not going to because of our discussion. On reflection, I wonder whether a possible approach would be for the Prime Minister to make an appointment only following a recommendation by those listed under subsection (3)(a) to (e). That would mean that the Lord Chief Justice would recommend the judge that they consider to have the skills and experience to do the particular job. The Lord Chief Justice would know about that and, with respect, the Prime Minister would not know about it in the same detail. The Prime Minister would, therefore, not be able to make an appointment that had not been recommended by the Lord Chief Justice and step outside that, but on the other hand, the Prime Minister would not be forced to make an appointment. That is because it is a recommendation, not a requirement, and so in a particularly contentious case the Prime Minister may say no.
There is an issue of appearance. These judges will have made decisions at the highest level, both for and against the Government. I can see how there would then be the temptation for some to look at the track record of a particular judge and say, “I can see why it is them.” Doing things in this way—I readily accept that this suggestion is not one of the amendments—would mean that the Lord Chief Justice had a more powerful role. In the end, it would be a recommendation role and there would be no appointment without a recommendation from the Lord Chief Justice, but they would not mandate the decision maker, which would remain the Prime Minister.
I simply put that idea forward. It is not one of the amendments. I will not press the amendments because at this stage further consideration probably needs to be given to exactly how the process will operate, if it is to be changed at all. I will now give way and I am sorry for not having done so sooner.
Mr Hayes
The difference between us is becoming even narrower. It seems that we are speaking about what the hon. and learned Gentleman has described as appearance. In saying that, I do not want to minimise the importance of this issue, but he will know that Lord Judge, when challenged on the issue of compromising independence, was clear. He said:
“There is no danger whatever.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74, Q236.]
The reality is that independence would not be compromised, but I understand the hon. and learned Gentleman’s point on how these things look, and I will consider that in the spirit he suggested it.
Keir Starmer
I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 194 ordered to stand part of the Bill.
Clause 195
Terms and conditions of appointment
Joanna Cherry
I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.
The Chair
With this it will be convenient to discuss the following:
Amendment 746, in clause 195, page 149, line 36, after “may”, insert “not”.
Amendment 860, in clause 195, page 150, line 18, at end insert—
“(e) the Commissioner is unfit to hold out office by reason of inability, neglect of duty or misbehaviour.”
Amendment 861, in clause 195, page 150, line 18, at end insert—
“(6) Before removing a Judicial Commissioner the Prime Minister must consult—
(a) the Lord Chief Justice of England and Wales,
(b) the Lord President of the Court of Session,
(c) the Lord Chief Justice of Northern Ireland,
(d) the Scottish Ministers, and
(e) the First Minister and Deputy First Minister in Northern Ireland.”
Joanna Cherry
It is a pleasure to serve under your chairmanship, Mr Owen. Clause 195 deals with the terms and conditions of appointment for judicial commissioners, and amendments 745 and 746 address the term of the appointment. The Bill provides for the judicial commissioners to be appointed for short terms of three years, subject to a potential rolling renewal. The amendments would extend the length of term served to six years and remove the prospect of renewal. The thinking behind that is that secure judicial tenure is designed and recognised as one of the key safeguards of judicial independence.
The provision for the judicial commissioners to be appointed by the Prime Minister and for their terms to be short and subject to renewal only at the discretion of the Prime Minister could pose a significant barrier to the commissioners’ functional or apparent independence. Three years is a very short term, and a judicial commissioner wishing to extend his or her term may be influenced in their behaviour by a desire to please the current Administration. In saying that, I take fully on board the fact that an extremely distinguished English judge, Lord Judge, has said that that is unlikely to happen, but he cannot speak for other judges or the future, just as this Government cannot speak for future Governments. That is why judicial independence is so important.
We may feel complacent about judicial independence at present. I do not mean to be pejorative about the English system, but I like to think we have proper judicial independence in Scotland—as I said earlier, judges are appointed by Her Majesty the Queen on the recommendation of the First Minister after they have consulted the Lord President and after the Judicial Appointments Board for Scotland has made a recommendation. We have judicial independence under the current system in Scotland, but those judges are of course appointed for an indefinite term, until such time as they have to retire. Under the Bill, the plan is to have judges appointed by the Prime Minister. I have heard what the Government say, but without the further safeguards we have just been discussing, judges will be appointed for very short periods of three years, at which time their renewal will come up. If the amendments are made, the term of appointment will be six years, which is probably quite long enough to be doing this sort of important and taxing work, and there will be no renewal thereafter.
The six-year terms would allow the commissioners to develop their expertise and avoid any concerns about stagnation. Importantly, six-year terms would ensure that the judicial commissioners’ tenure does not undermine their crucial independence from the Government, and the perception of their independence from the Government and from the officers, agencies and public bodies they are monitoring.
Victoria Atkins (Louth and Horncastle) (Con)
It is a pleasure to serve under your chairmanship, Mr Owen.
The point of the three-year term is surely that the Government are hoping to recruit High Court judges at the very top of their game—High Court judges who have a long career behind them and ahead of them. The idea of the three years is to give them the choice to pop out of the High Court or the Court of Appeal and do their three years, and then if they wish to return to service in the courts, they have been out for only three years. It is an attempt to encourage judges to apply, rather than to count against it.
Joanna Cherry
I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.
The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.
I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.
Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.
If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.
The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.
The Solicitor General
Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.
I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.
I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.
On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.
Joanna Cherry
I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 195 ordered to stand part of the Bill.
Clause 196
Main oversight functions
Joanna Cherry
I beg to move amendment 752, in clause 196, page 150, line 43, at end insert
“and under section 217 (technical capability notices)”
The Chair
With this it will be convenient to discuss amendment 747, in clause 196, page 151, line 19, leave out subsection (4)(a)
Joanna Cherry
The clause provides for oversight functions. The purpose of the amendments—amendment 752 in particular—is to provide for consistent oversight functions.
Under clause 218, obligations to remove electronic protections, which we will come to under part 9, or encryption can be issued either as a national security notice or, more likely, as a technical capability notice by the Secretary of State. As drafted, the Bill does not require judicial authorisation or a test of necessity or proportionality for either a national security notice or a technical capability notice. I argue that the powers are so far-ranging that they should be subject to oversight by the proposed new oversight body. Amendment 752 would make it clear that the commissioners have responsibility for oversight of national security notices and technical capability notices.
Amendment 747 would remove clause 196(4)(a). The Bill provides for the Secretary of State to modify the functions of the Investigatory Powers Commissioner and the judicial commissioners by secondary legislation subject to the affirmative procedure. The amendment would remove that power. I acknowledge that the Joint Committee had every confidence that such a power would only be exercised responsibly by the Secretary of State, but in the light of the commissioner’s important function holding Ministers and public agencies to account, I consider that granting Ministers a delegated power to alter the commissioner’s powers is inappropriate. One way of removing that power would be to leave out subsection (4)(a); another would be to take out clause 205 completely, but we will come to that later.
Suella Fernandes (Fareham) (Con)
I rise to speak in favour of clause 196 as drafted and against the amendments. It is an honour to serve under your chairmanship, Mr Owen.
Part 8 and clause 196 cover the oversight functions for the Investigatory Powers Commissioner and the judicial commissioners. Clause 196 sets out the functions of and legal basis for oversight relating to the interception of communications, the acquisition or retention of communications data and secondary data, and equipment interference. That review power includes audit, inspection and investigation of the exercise of the powers; it also relates to the use of data acquired, and taken with subsections (2) and (3) it extends to cover bulk personal datasets, section 216 notices and functions under section 80 of the Serious Crime Act 2015. That constitutes not only wide-ranging powers of oversight, but duties, which means there will be constant watch on how the powers are implemented on the ground, which is vital to ensuring public trust.
Mr Hayes
I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are
“of statutory functions relating to”
the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, through oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.
Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.
As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.
Question put, That the amendment be made.
Joanna Cherry
I beg to move amendment 748, in clause 196, page 151, line 42, leave out from “must” to end of line 44 and insert
“have due regard to the public interest in avoiding acts prejudicial to”.
The Chair
With this it will be convenient to discuss the following:
Amendment 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—
“(c) privacy and the integrity of personal data; and
(d) the security and integrity of communications systems and networks.”
Amendment 751, in clause 196, page 151, line 48, leave out subsections (6) and (7).
Joanna Cherry
The hon. Member for Fareham and the Minister have already anticipated what I am going to say in support of the amendments, so I will try to be brief. The Bill requires the Investigatory Powers Commissioner and the other judicial commissioners to prioritise
“national security, the prevention or detection of serious crime…the economic well-being of the United Kingdom”
above all other considerations in the exercise of their functions. It also imposes a particular duty not to
“jeopardise the success of an intelligence or security operation or a law enforcement operation…or unduly impede the operational effectiveness of an intelligence service, a police force…or Her Majesty’s forces.”
The amendments would create a “due regard” duty for judicial commissioners to exercise their functions in a manner that considers the range of important public interests that their oversight function is designed to preserve, including the protection of individual privacy,
“the integrity of personal data; and the security and integrity of communications systems and networks.”
Amendment 750 is consistent with other amendments in that it would remove the reference to
“the economic well-being of the United Kingdom.”
Amendment 751 would remove the exceptionally broad particular duty to refrain from impeding the work of the agencies, the police or the armed forces.
We have already had lengthy submissions on the issue of the economic wellbeing of the United Kingdom. On the “due regard” issue, the response from the hon. Member for Fareham and the Minister was that clause 196 is adequate as it stands, because we have heard evidence from a number of people involved in the system that everything is done properly and above board.
In these Houses yesterday, as a result of the second inquest into the Hillsborough tragedy, we had a classic example of it coming to light that the establishment and the state had not performed their duties properly. Sometimes the state and the establishment do not perform their duties properly; sometimes things that are not specifically laid down are not done properly. To take the Hillsborough example, until we had article 2 of the European convention on human rights and the particular duty to involve the family and next of kin in inquests, we would not have had what the Home Secretary read out to us yesterday, the detailed questions for the jury and the detailed answers that the jury members had to give. They were the result of a specific requirement to involve and respect the wishes of the next of kin, and of duties under article 2.
Mr Hayes
Disraeli said that a precedent embalms a principle, and the amendment is certainly not unprecedented, since we are once again considering the issue of economic wellbeing, as we have done with some frequency. Familiarity is almost always desirable, but I am not sure that the same can be said of repetition, which can often lead to tedium, so I will not repeat the argument about that. Let me therefore deal with the other amendments.
Amendment 748 has a probably unintended consequence. At the moment, judicial commissioners must—I use that word advisedly—not act in a way that they consider prejudicial to the public interest. The amendment, perversely, reduces that, so that they should have “due regard” to the public interest. It is a weakening of the public interest. I am not sure that that was the intention, but it is certainly the consequence of the amendment, which can be dismissed accordingly.
That leaves me with the point that the hon. and learned Lady made about privacy and the integrity of personal data. Proust said—he was speaking of prejudices, but this could be applied here—that at their “moment of novelty…fashion” lends things a “fragile grace.” On first acquaintance the amendment has such grace, but on closer examination the fragility becomes evident, because this is not by any means the best place in the Bill to advance that defence of privacy. A better argument, championed by the hon. and learned Member for Holborn and St Pancras, but supported by the hon. and learned Lady, would be to consider privacy at the early part of the Bill, which might then have ramifications for the whole of the rest of the Bill if an appropriate clause were constructed.
I have argued that privacy runs through the Bill and that it is an intrinsic part of the connection—the harmonious union that we seek to create in this legislation—between defence of personal interest and the capabilities of those missioned to keep us safe. The hon. and learned Gentleman put the case, right at the outset, that there was an argument for something more fundamental, which explained that relationship more explicitly through some clause. I put it to the hon. and learned Lady that that would be a much better place.
Keir Starmer
I am grateful to the Minister for giving way. I remind the Committee that the way I saw it was that there should be some overarching clause that would apply throughout the Bill, and thus to this clause and all others.
Joanna Cherry
I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.
Mr Hayes
I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.
Peter Kyle (Hove) (Lab)
The Minister demonstrates a listening Government in action by giving way to me and I am extremely grateful to him for doing so. With regard to clause 196(6), which would be removed by the amendment, Sir Stanley Burnton, the expert witness, said:
“We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, ‘You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.’”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74.]
Would the Minister care to comment on that point?
Mr Hayes
Now the Committee is getting exciting; it often happens, as one gets deep into consideration. I must say that the hon. Gentleman—unsurprisingly, given his reputation, but in a most welcome way—has illustrated a diligence in the consideration of the detail of this measure, which does him great credit.
However, having been nice about the hon. Gentleman, now let me be less nice. The hon. and learned Lady wants to weaken public interest; he wants to take out a whole chunk of the Bill—
Mr Hayes
The hon. Gentleman wants to take out a part of the Bill that says that, in the exercise of their function, the judicial commissioner should not
“compromise the safety or security of those involved”.
Well, of course they should not “compromise the safety” of security personnel. The hon. Gentleman may say that that is self-evident, but, my goodness, if we took out everything that was self-evident we would have a Bill half as long as it is. The self-evident is sometimes an important part of guaranteeing all those things that we might, with good will, take for granted. That is the very nature of legislation, as the Solicitor General knows very well indeed.
The Solicitor General
I take on board what the hon. Member for Hove said, but we are talking about the oversight function. I reassure him that it is not about the exercise of the judicial discretion in approving warrants. It is about the oversight part, and I hope that reassures him.
Mr Hayes
I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.
Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.
Keir Starmer
I simply remind the Committee that what my hon. Friend the Member for Hove said was, “This is what Sir Stanley said, would you care to comment on it?” In fairness, there is no criticism of the Minister in any of this. My hon. Friend is simply saying, “This is the witness’s evidence. What do you make of it?”
Joanna Cherry
The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause pertains only to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:
“In exercising functions under this Act”.
It does not say, “In exercising oversight functions”.
Joanna Cherry
I wish to insist on the amendments.
Question put, That the amendment be made.
Investigatory Powers Bill (Fourteenth sitting)
Thursday 28th April 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 760, in clause 197, page 152, line 27, leave out “directed” and insert “requested”.
The Chair
With this it will be convenient to discuss the following:
Amendment 761, in clause 197, page 152, line 28, leave out “must” and insert “may”.
Amendment 762, in clause 197, page 152, line 39, leave out
“in a manner which the Prime Minister considers appropriate”.
Amendment 763, in clause 197, page 152, line 42, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 764, in clause 197, page 152, line 45, leave out subsections (4)(c) and (4)(d).
Joanna Cherry
The clause deals with additional directed oversight functions. It binds the Investigatory Powers Commissioner to conducting reviews of the work of the intelligence services or the armed forces, subject to the direction of the Prime Minister. While the commissioner may request that the Prime Minister gives such a direction, the Prime Minister will only issue a direction at his or her discretion. The amendments to subsection (1) would make it read as follows: “So far as requested to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner may keep under review the carrying out of any aspects of the functions of” the intelligence services and so on.
The amendments to subsection (4) would make it read: “The Prime Minister must publish any direction under this section except so far as it appears to the Prime Minister that such publication would be seriously prejudicial to national security, or the prevention or detection of serious crime”.
The amendments would remove the power to direct that such reviews take place, and replace it with the power to request that the Investigatory Powers Commissioner undertake such a review. At present, the Bill provides that any direction made may be published only in such a form as is deemed appropriate by the Prime Minister, and may be redacted for a number of very broad reasons, including that it may be prejudicial to
“the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.”
That could include, for example, the Food Standards Agency.
The amendments to subsection (4) would limit the power to keep any request or direction secret. That would increase the effectiveness of the mechanisms for transparency and accountability in public decision making, including in respect of the conduct of the intelligence agencies and the armed forces. The provision in the Bill for the Prime Minister to direct the commissioner to undertake work that is outside the ordinary scope of its statutory duties would undermine the perception that the commissioner is independent, whereas a power to request, with discretion, keeps the perception—and reality—of the independence of the commissioner. The alternative would be to remove the clause from the Bill completely. I hope that the amendments will be acceptable to the Government, and that there will be no need to vote the clause down.
The Minister for Security (Mr John Hayes)
As the hon. and learned Lady says, the clause makes provision for the Prime Minister to direct the Investigatory Powers Commissioner to undertake additional oversight of the security and intelligence agencies. I say “additional” with emphasis, because clause 196 creates a range of oversight functions that are supplemented by clause 197. I think there may be a misapprehension here that the oversight is exclusively at the diktat of the Prime Minister. That is certainly not the case.
The principal oversight functions are given legislative life in clause 196. Clause 197 provides a further opportunity for oversight through investigations, as a result of the direction that the hon. and learned Lady referred to. That has many virtues. It adds alacrity, because of course it would not always be appropriate to wait for the annual report of the commissioner. It means that where matters of imminent concern are drawn to the attention of the Executive through the Prime Minister, or indeed to the attention of the Prime Minister, he can exercise this function with speed and diligence. To take out the whole clause, which would be the effect of the amendment, would take out the additional directed oversight functions that supplement clause 196 in a beneficial way.
Of course, the Prime Minister’s ability to make such directions is subject to the public interest and defined by need. It is important to add that anything the Prime Minister does in this regard cannot be prejudicial to national security, the prevention or detection of serious crime or the economic wellbeing of the UK. Indeed, the opposite is true. He acts in defence and promotion of those things. Once again, I understand that the hon. and learned Lady is probing, and it is right that she does so. However, on careful reflection, she will come to the conclusion that rather than adding to the Bill, this literal subtraction would be unhelpful.
The Joint Committee said nothing about this matter. Although it looked at these things with impressive diligence, it came across no evidence of which I am aware that suggested that such a measure was imperative. The amendment certainly would not enhance oversight. Part of my job here is to protect the hon. and learned Lady. The amendments we debated immediately before our brief lunch would have had the effect of minimising consideration of public interest. In this case, she would be minimising the ability to exercise additional oversight. On that basis, and in defence of the existing provisions, of what is right, and—might I say mildly—of the hon. and learned Lady’s own interests, I invite her to withdraw her amendment.
Joanna Cherry
Well, Mr Owen, I am not going to fall into that trap, just as I did not before lunchtime. I am not sure whether it is flattery or compliment, but whichever it is, I will not fall for it. There is good reason for the amendment, as I have explained, and I wish to press it to a vote.
Question put, That the amendment be made.
Joanna Cherry
On reflection, Mr Owen, I do not think that there is much point in doing so; we all know which way this is going. I think that the marker has been laid down in relation to clause 197.
Question put, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 773, in clause 198, page 153, line 6, leave out from “aware” to the end of line 9.
The Chair
With this it will be convenient to discuss the following: Amendment 765, in clause 198, page 153, line 6, leave out
“if the Commissioner considers that—”.
Amendment 766, in clause 198, page 153, line 8, leave out subsection (1)(a).
Amendment 767, in clause 198, page 153, line 10, leave out subsection (2).
Amendment 774, in clause 198, page 153, line 10, leave out subsections (2) to (5) and insert—
‘(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(3) Exceptional circumstances under subsection (2) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
Amendment 778, in clause 198, page 153, line 11, leave out “may not” and insert “must”.
Amendment 779, in clause 198, page 153, line 12, after “has”, insert “not”.
Amendment 780, in clause 198, page 153, line 12, leave out “significant”.
Amendment 768, in clause 198, page 153, line 14, leave out subsection (3).
Amendment 781, in clause 198, page 153, line 14, leave out “has” and insert “may have”.
Amendment 782, in clause 198, page 153, line 15, leave out “not”.
Amendment 769, in clause 198, page 153, line 19, leave out subsection (4)(a).
Amendment 783, in clause 198, page 153, line 19, leave out
“and its effect on the person concerned”.
Amendment 784, in clause 198, page 153, line 20, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 770, in clause 198, page 153, line 24, leave out subsection (4)(b)(iii).
Amendment 771, in clause 198, page 153, line 25, leave out subsection (4)(b)(iv).
Amendment 785, in clause 198, page 153, line 26, at end insert—
‘(4A) In subsection (4) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”
Amendment 788, in clause 198, page 153, line 39, leave out subsection (7).
Amendment 776, in clause 198, page 153, line 45, leave out paragraph (b).
Amendment 772, in clause 198, page 154, line 3, after “public authority”, insert
“or a telecommunications operator”.
Amendment 777, in clause 198, page 154, line 6, leave out paragraph (b).
Keir Starmer
We deal here with error reporting. The structure and arrangement of the clause distinguishes between serious and other errors. There is a definition of “serious” in subsection (2), and a provision in subsection (3) indicating that a breach of the European convention on human rights
“(within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.”
The Joint Committee considered the measures and recommended that the Government review the error reporting threshold. The Government said that they accepted that recommendation, but for my part, I have not seen anything further to that acceptance. In other words, I am not sure that anything about the review has been set out. If I am wrong, I will not pursue the point, but although the Government have accepted the principle of a review, I have not seen the outcome of that review.
In relation to the threshold, the amendments are intended to achieve a number of things. One is to make it clear that a breach of a convention right should be regarded as a serious error, irrespective of what follows from it. We obviously welcome the fact that in clause 198, the Government have responded to recommendation 57 by the Joint Committee, so that commissioners are now capable of exercising the function of error notification without the involvement of the Investigatory Powers Tribunal. That is a response to the Joint Committee, I think, and it is welcome.
However, the Joint Committee suggested that as well as informing those affected by the errors and providing them with adequate information, there should be an ability to refer matters directly to the IPT where unlawful conduct has been identified. In other words, there should also be a power to go to the IPT directly. That was recommendation 66, and it is not reflected in any revision to the clause. It would be an important means of pursuing and preventing further violations involving errors about which it was not in the public interest to inform individuals, but which none the less ought to be brought to the attention of the IPT. We notice that the Government have not made that change, and I would be interested to hear the reasons. David Anderson also supported the ability of an independent oversight body to refer cases to the Crown Prosecution Service or lodge a claim directly with the IPT, again as a way of ensuring an element of direct access. Those issues relate to the first few subsections of clause 198.
Mr Hayes
Let us think for a moment about reality. I have never regarded myself as a prisoner of reality, for to imagine is to be human, is it not? But every Member of this House is from time to time approached by members of the public and others whose imagination has got the better of them. Among the skills that one develops as a Member of Parliament is the ability to discern the occasions on which that could either become a matter of embarrassment or absorb undue resource.
These amendments, which would create an obligation to send notification to anyone who had a complaint, however realistic or imaginary it might be, would surely not be a helpful addition to the sense of the Bill. I am sure that this is not the hon. and leaned Gentleman’s intention, but if he thinks through the ramifications of shifting the threshold as the amendments would, and requiring individuals to be notified as a matter of course of any error, no matter how small, he will see that the burden placed on those who are determined to deal with significant errors would be significant, undesirable and, in my view, unacceptable.
Keir Starmer
I think the Minister is making two points. One is on the imagined wrongs of members of the public, and the other is on the burden created if notification is required for all errors. The second point is, of course, a powerful submission. On the first, the imagination of the affected person does not make a material difference. This pertains to errors found by the commissioner, so surely only the second point—that it is an undue burden—is relevant.
Mr Hayes
Yes indeed. I have not sought to patronise the hon. and leaned Gentleman during the Committee’s proceedings, but there is quite a difference between 19 years’ experience as an MP and rather fewer. If he thinks through what an error of transposition, the mistyping of a digit in a telephone number or a typographical error might lead to in misassumptions on the part of those with vivid imaginations, I think he will understand the point I am trying to make. Notification of those kinds of petty errors, as the amendment would require, is not only unnecessary but would lead to undesirable consequences.
Keir Starmer
The Minister really does have to give up the habit of suggesting that the way we probe and push the Government on, say, the threshold between serious and ordinary errors has to do with inexperience. Many of us have huge practical experience of the operation of the sorts of powers in the Bill. I dare say I have looked in greater detail at the provisions of the Acts that preceded this Bill than many people on this Committee. I do not say that in self-congratulation; it has been a burden. I have looked at these kinds of provisions in detail over very many years. Part of the purpose of this exercise is to push. The Minister makes a good point on the difference between the thresholds, but if we sit on our hands and never push, this process does not work. That has nothing to do with experience.
Mr Hayes
The hon. and learned Gentleman is being excessively sensitive. I was not commenting on his experience, expertise or diligence on these matters generally. I was drawing attention to the fact that those of us who have served as Members of Parliament and have dealt with the consequences of the misinterpretation that can unfortunately arise from the most minor of matters—we have all been there in our surgeries, and I think we all know what I mean—have learned that very well intentioned provisions can lead to misassumptions and even fuel vexatious complaint. I am not questioning the hon. and learned Gentleman’s right to probe—indeed, I welcome it, and he has exercised it with diligence and courtesy—but the amendment could have the unintended consequence of fuelling the kind of misassumptions and consequent vexatious complaints that we have to deal with by the nature of our job, and be quite discerning about, too.
Christian Matheson (City of Chester) (Lab)
I am sure that I do not need to remind the Minister that both my hon. and learned Friend the Member for Holborn and St Pancras and the hon. and learned Member for Edinburgh South West are skilled, high-level criminal prosecution advocates, so they will be well aware of the ability to find fault with legislation. We should be grateful that they will not be the defence barristers finding fault with the legislation.
Mr Hayes
I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.
In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.
Joanna Cherry
I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as
“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”
Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?
Mr Hayes
The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.
Joanna Cherry
Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.
Mr Hayes
I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.
The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.
Keir Starmer
I confess that one reason why I decided not to press amendments 772 and 777 was that when I looked at this group of amendments late last night, I realised that some of them would not have the effect that I intended. This is not a criticism, but for the record and as the Minister knows, the resources and back-up we get our respective positions on the Committee differ markedly. The Opposition work at pace with the resources we have, and occasionally on returning to amendments I have realised that they should not have been proposed.
Mr Hayes
I can tell that I struck a raw nerve with the hon. and learned Gentleman earlier and I want to try to rebuild the bridge that leads us back to the warm relationship we enjoy. Notwithstanding all that I have said, the clause could be perfected and I would like to look at it in the round to see what more we can do. Both the hon. and learned Lady and hon. and learned Gentleman heard my reservations about the amendments as drafted—indeed, he generously acknowledged that there are some imperfections in the amendments, which is often the way when drawing them up as a shadow Minister, as I know only too well—but they are designed to probe and they have done that successfully.
Notwithstanding my certainty on the point I made about detail, we can look at the clause in the round and make improvements. On that basis—the Bill has a long way to go—I hope that the hon. and learned Gentleman will withdraw his amendment.
Keir Starmer
I am grateful to the Minister for the content and spirit of his remarks. I was intending to press at least one amendment in the group, but in the circumstances I will not do so. We can all reflect on the wording of the clause, so I beg to ask to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 775, in clause 198, page 153, line 38, at end insert—
“(c) provide the person with such details of the submissions made by the public authority on the error and the matters concerned pursuant to subsection 198(5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
The Chair
With this it will be convenient to discuss amendment 791, in clause 199, page 154, line 21, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
Keir Starmer
I can be brief. The short amendments would provide that when a person is notified so that they can pursue a remedy if so minded or advised, they are given sufficient detail to do so. I think they are self-explanatory.
The Solicitor General (Robert Buckland)
It is a pleasure to reply on these amendments. In the spirit of the hon. and learned Gentleman’s remarks, I will deal with them as quickly as I can.
The amendments are about a submission prepared by a public authority for the commissioner that relates to an error being shown to an individual affected. With respect, I do not think that is necessary or desirable and I will set out three reasons for that. First, the IPC is already required to provide to the person such details of the error as the commissioner considers necessary. If that test is met by any information provided to the IPC in the course of the submissions made pursuant to clause 198(5), the Bill already requires that the judicial commissioner provide those details to the person. The amendment is therefore unnecessary.
Secondly, I am concerned that the amendment might inhibit disclosure to the commissioner. The submission is intended to assist the commissioner in deciding the seriousness of the error and the impact of disclosure; as such, it will contain a full and frank admission of how the error occurred and what measures have been put in place to prevent it from happening again. If the public authority knows that any submission it makes will be provided to an individual, out of necessity, to preserve the secrecy of its operating systems and methods, it may need to be less candid in its submission to the commissioner. That will force the commissioner to take a decision on whether it is in the public interest for an individual to be informed without, regrettably, knowing the full facts behind the matter.
Finally, if a case is brought to the Investigatory Powers Tribunal, disclosure of the relevant material will occur during the proceedings in the normal way. If the IPT thinks that any part of the submission should have been disclosed, it can order that to be so disclosed. The tribunal is best placed to rule on what should or should not be disclosed as the case progresses, rather than what I would regard as inappropriate disclosure before the initiation of proceedings.
Amendment 791 would remove the requirement for judicial commissioners to consult the Secretary of State before releasing information to any public authority or other person. I have made the point before and make no apology for repeating it that, given the responsibility of the Executive for the protection of the public, it is right that the Executive be given the opportunity to express an opinion on where the public interest lies. For those reasons, I respectfully invite the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 198 ordered to stand part of the Bill.
Clause 199
Additional functions under this Part
Joanna Cherry
I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.
This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.
The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.
Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.
The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that
“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”
Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:
“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”
The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.
In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:
“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.
However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.
First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.
The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:
“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”
I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.
Suella Fernandes (Fareham) (Con)
Does my hon. and learned Friend agree that the heavy common law duty of candour on the authorities that will be the subject of such inquiries is applicable to these jurisdictions? Those authorities will have to disclose everything, even if that militates against the applicability of their evidence. That position was endorsed by the divisional court in the case of Chatwani.
The Solicitor General
I am grateful to my hon. Friend for reminding us about the duty of candour that applies to public bodies, which is of course material.
In addition, the clause has already been amended, pursuant to the Joint Committee’s recommendation 59, to make it clear that a commissioner does not need to consult the Secretary of State before sharing information with or providing assistance to the IPT. That is provided for in clause 199(4) and may well address many of the concerns raised by the hon. and learned Member for Edinburgh South West about the Secretary of State being some sort of bar to proper disclosure and sharing of information. That is not the case under the Bill as already amended. As for providing the IPT with all information relating to relevant errors, as I have said, courts and tribunals cannot and will not consider those issues without a party first having brought a claim.
Within the framework of the clause, we have the necessary structure for proper and frank disclosure to the IPT by the commissioners of relevant material that will assist any party in bringing an action where they have been subject to an error or some form of wrong. To conflate the two would lead to more confusion and would be unnecessary. With respect, I urge the hon. and learned Lady to withdraw the amendment.
Joanna Cherry
I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 199 ordered to stand part of the Bill.
Clause 200 ordered to stand part of the Bill.
Clause 201
Annual and other reports
Keir Starmer
I beg to move amendment 808, in clause 201, page 156, line 37, leave out “the Prime Minister” and insert “Parliament”.
The Chair
With this it will be convenient to discuss the following:
Amendment 801, in clause 201, page 157, line 3, leave out subsection (3).
Amendment 809, in clause 201, page 157, line 6, leave out “the Prime Minister” and insert “Parliament”.
Amendment 810, in clause 201, page 157, line 13, leave out subsection (6) and insert—
“(6) The Investigatory Powers Commissioner must lay a copy of the report before Parliament together with a statement as to whether any part of the report has been excluded from publication under subsection (7).”
Amendment 811, in clause 201, page 157, line 19, leave out “The Prime Minister” and insert “The Investigatory Powers Commissioner”.
Amendment 812, in clause 201, page 157, line 19, leave out “Investigatory Powers Commissioner” and insert “The Prime Minister”.
Amendment 813, in clause 201, page 157, line 22, leave out “Prime Minister” and insert “Investigatory Powers Commissioner”.
Amendment 804, in clause 201, page 157, line 23, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 805, in clause 201, page 157, line 27, leave out subsections (7)(c) and (7)(d).
Amendment 815, in clause 201, page 157, line 28, leave out subsection (7)(d).
This amendment would delete “prejudicial to the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner” as grounds for excluding a part of a report issued under this Part from publication.
Amendment 806, in clause 201, page 157, line 30, at end insert—
“(7A) In subsection (7) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”.
Amendment 807, in clause 201, page 157, line 40, leave out
“if requested to do so by the Prime Minister”.
Keir Starmer
It is welcome that the Government have accepted and implemented recommendation 67 of the Joint Committee on the draft Bill, which was for the annual report to include information on the use and oversight of investigatory powers. However, it is disappointing that there is no provision to require the number of errors to be included in the annual report. A moment ago, in resisting an amendment to a previous clause, the Minister said that the errors could be included in the report; perhaps that should be a requirement under the clause—just the number of errors, of course, not the details. Similarly, there is no requirement for the number of requested authorisations to be reported. That information is vital in gauging the proportion of requests that are granted; without it, the stringency of the double lock cannot realistically be assessed.
The amendments would require that the report be made directly to Parliament and would tighten up clause 201(7), which is very similar to the clause we were looking at a moment ago. Like previous amendments, amendment 804 would leave out the words
“contrary to the public interest or”
and would tighten the test by replacing “prejudicial” with “seriously prejudicial”. Amendment 805 is consistent with previous amendments in that it would remove our old friend “economic wellbeing” from the clause. Amendment 807 speaks for itself.
The annual reporting provisions are a step in the right direction; we acknowledge that the Government have taken action as a result of the Joint Committee’s recommendations. We have tabled these amendments to suggest that more could be included in the report, that the reporting should be directly to Parliament and that exclusion from publication should be subject to a stricter test than the one currently set out in clause 201.
Mr Hayes
Let me address a couple of factual issues. Clause 198(8)(a) refers to
“the number of relevant errors of which the Investigatory Powers Commissioner has become aware during the year to which the report relates”.
The number of errors must be published by dint of that requirement. That is what I was referring to.
Mr Hayes
It is reinforced, for the sake of accuracy, by clause 201(2)(a), which has further details on
“the number of warrants or authorisations issued, given, considered or approved during the year”.
I entirely agree that it is important that scale is dealt with in the way the hon. and learned Gentleman requests.
I am quite sympathetic to the amendment. This is one of those discussions in Committee that boils down to—I have used the phrase “boils down to” once, so for the sake of Hansard, I will change it, because I do not like to repeat myself. This discussion can be reduced to—boiling has the effect of reducing, as all those who are cooks will know—a debate about what it is in the codes and what is in the Bill. As the hon. and learned Gentleman rightly says, the Joint Committee looked at this. I have its recommendation before me. He is right to say that the Committee wanted more information about the records kept in this regard.
In essence, as the hon. and learned Gentleman generously suggested, the Government have responded by publishing the draft codes of practice, which address these matters. The amendment would put these matters in the Bill. My argument for rejecting the amendment is that it is adequate for them to be in the codes. We are back to the debate of what we put in the Bill and what we put in supplementary material.
I am not unsympathetic to the amendment. I have no doubt that the hon. and learned Gentleman will want to continue this discussion. I am not sure I want to vote in favour of the amendment today, but in the spirit that I have tried to adopt throughout the consideration of this part of the Bill, I reassure him that the Government remain open-minded to how we get this right.
This is new territory, but not in the sense that there has not previously been oversight. Rather, the reforms to oversight made by the Bill are of some significance. We are in the business, as a Committee and as a Parliament, of considering exactly how to construct that oversight in an effective way. On that basis, I am prepared to listen to argument. I will not accept the amendment, but I am open to further consideration. I hope, given the tone and content of what I said, that the hon. and learned Gentleman will see fit to withdraw his amendment.
Keir Starmer
Again, I am grateful to the Minister for his observations. I record my appreciation that on occasions when we have pressed matters, both the Minister for Security and the Solicitor General have indicated a willingness to look again at clauses or provisions with a view to changing or perfecting them. That is a useful part of the process. I gauge that my chances of success in improving the clause are greater through that process than by pressing the amendment to a vote.
Keir Starmer
Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I rise to speak to amendment 814, in clause 201, page 156, line 42, after “authorisations”, insert “requested and”
This amendment would require the Annual Report to include information on the number of requests for warrants or authorisations made.
I have spoken to this amendment in the round and therefore will not say anything more about it.
The Chair
The amendment is not moved.
Clause 201 ordered to stand part of the Bill.
Clause 202 ordered to stand part of the Bill.
Clause 203
Information gateway
Joanna Cherry
I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—
‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.
The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.
The Solicitor General
I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 ordered to stand part of the Bill.
Clause 204
Funding, staff and facilities
Keir Starmer
I beg to move amendment 833, in clause 204, page 158, line 41, leave out
“The Secretary of State must”
and insert “The Treasury must”.
The Chair
With this it will be convenient to discuss the following:
Amendment 834, in clause 204, page 158, line 42, leave out
“and subject to the approval of the Treasury”.
Amendment 835, in clause 204, page 158, line 43, after “with”, insert “funds to cover”.
Amendment 836, in clause 204, page 159, line 3, leave out “Secretary of State considers”.
The amendments 833 to 836 would remove the role of the Secretary of State in determining the funding, staff and facilities to be afforded to the Judicial Commissioners, leaving this to the Treasury and the IPC.
New clause 17—Remuneration or allowances for additional directed oversight functions—
“The Treasury shall make available such remuneration or allowances as necessary to meet the requirements of section 197 (Additional directed oversight functions).”.
Keir Starmer
The provision deals with funding, staff and facilities. The Solicitor General has mentioned funding already. We agree with the Joint Committee on the Bill that it is wrong for the budget and resources available to the judicial commissioners to be set solely by the Secretary of State when the primary function of the commissioner is reviewing decisions taken by them. The Solicitor General mentioned other arrangements by which budgets are set for independent oversight bodies, but these particular commissioners oversee the Secretary of State’s decisions. That is the whole point of the double lock, and that compromises the situation. The Government’s response to this recommendation indicated that they might be willing to consider a role for the Investigatory Powers Commissioner in helping to set the budget. Will the Solicitor General update us on whether that response is now complete and rejected, or whether it is still a consideration that the Government are dealing with? The Opposition’s amendment is straightforward and would improve matters by putting them entirely in the hands of the Treasury, in consultation with the commissioner.
New clause 17 is the freestanding clause that says the Treasury
“shall make available such remuneration or allowances as necessary to meet the requirements of section 197.”.
It is an in-principle position because of the particular function of the judicial commissioners, which is unlike those of the other oversight bodies. The Government have indicated a willingness to look at a different arrangement involving the Investigatory Powers Commissioner. We think that would be the right way forward, and new clause 17 would provide for that to happen through the involvement of the Treasury.
Mr Hayes
Given the commitment I made earlier to consider closely the construction of these arrangements and, in particular, to the detailed consideration about the role of the new body and its independence, I fully understand why the hon. and learned Gentlemen has raised this issue. I hesitate to cite my experience again. Last time I did that, I fed the caricature that I have been desperately trying to persuade the hon. and learned Member for Edinburgh South West is just that—a parody—through all my kindness, generosity and sensitivity to her concerns. Notwithstanding that hesitation, I have to say that from all my experience as a Minister, the last people you want to involve in these things is the Treasury.
Keir Starmer
In my role as Director of Public Prosecutions, I had to engage with the Treasury. I, therefore, do have that experience, so I join the Minister in that sentiment.
Mr Hayes
I knew we would soon get on to common ground again. It took only a few minutes for the ship to go back on to an even keel. I worry that exposing the IPC to direct negotiation with the Treasury, when I suspect that the Home Office would have a closer relationship and understanding of the IPC and of the Treasury, would serve no good purpose. I can see why in theory it would reinforce independence, and I think that is what the hon. and learned Gentleman was getting at; that it is important that the IPC is not seen as merely the creature of the Home Office, and that funding reflects that independence.
I can see where the genesis of the argument springs from but, in practical terms, it would be much more straightforward for the Home Office to assist the IPC by taking the lead in the negotiations. Treasury involvement will ultimately be necessary in order to get sufficient funding for the IPC. Certainly, in terms of the assessment of resources and so on, the intimacy of the relationship between the Home Secretary, her officials and the IPC will be critical to ensuring that the budget is properly constructed and adequate for the job.
For that reason, and in the interests of brevity, I ask the hon. and learned Gentleman to withdraw his amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 837, in clause 204, page 159, line 4, at end insert—
‘(3) The staff of the Judicial Commissioners must include independent technical experts.
This amendment would ensure that judicial commissioners have access to technical experts.
The amendment speaks for itself. It is proposed to ensure that technical expertise is available to the judicial commissioners.
Mr Hayes
Here we can find common ground, in that we entirely agree that it is right that the IPC and the judicial commissioners have access to the right technical expertise. That is essential, certainly on an ongoing basis and, one might argue, particularly at the outset. This is going to be a new process and, while these will be very experienced judges, they will be dealing with matters that they have not had to deal with previously. However, I am not sure that the amendment is necessary to achieve that.
The hon. and learned Gentleman will know that clause 204 provides that the Secretary of State must consult the IPC about staffing, accommodation, equipment and other facilities that are necessary. Of course, that will mean a proper consideration of technical expertise, and I am happy to confirm that now. That process would provide the commissioner with the chance to make it clear if they believe there is a requirement for particular staff and how they want those staff to be employed. It may be that at different points in the work, different levels of technical expertise are necessary. Some of that might require full-time employment of technical experts. On other occasions, I suspect that they would want to consult technical experts on an ad hoc basis. That flexibility would not only add to the official use of resource but add to the effective completion of their functions.
To give one further assurance, I want to be very clear that, should such representations be made to the Secretary of State—we talked in the debate on the previous amendment about the Home Office being the point of contact with our paymasters, the Treasury—it is inconceivable that the Secretary of State would consider that the commissioner did not need the resources requested. While it would not be appropriate to create a statutory obligation in the Bill to provide detail of what staff should, or should not, be employed—because it is important that the commissioner makes that judgment on a discretionary basis—I can give an assurance that the commissioner will be equipped as they need to be.
The matter might also be one that changes over time. What the IPC considers necessary at a given point in time might reflect its caseload or even case history—it might feel that extra expertise needs to be taken on, depending how things change. We have all said that all such matters that we are considering are highly dynamic, so I want to allow that extra discretion, not least for that reason.
On that basis, I hope that the hon. and learned Gentleman will withdraw his amendments, because I think we are again on the same page.
Keir Starmer
I have listened carefully to what the Minister has said, and it is now on the record, so on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 204 ordered to stand part of the Bill.
Clause 205
Power to modify functions
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I wish to oppose the clause, in relation to submissions I made earlier about clause 196.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I beg to move amendment 839, in schedule 7, page 216, line 17, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
The Chair
With this it will be convenient to discuss amendment 840, in schedule 7, page 216, line 34, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
Joanna Cherry
The amendments are self-explanatory. They require any code of practice, or any proposed revision to a code, to be accompanied by a report by the Investigatory Powers Commissioner. The report would be on the merits of the proposed revision and be required before any revision was laid before Parliament. The report would allow the commissioner to draw to the attention of Parliament any relevant information about the scope of the code or its potential impact, which to my mind is a sensible and reasonable amendment.
Mr Hayes
Here we are again debating the creative tension between obligation and discretion—how much we oblige bodies to do in the Bill, and how much discretion we afford to those we empower through the Bill. The hon. and learned Lady does the Committee a service in drawing attention to how far we go in that respect. My view is plainly that discretion matters; I am sure she agrees. I emphasise yet again that the published codes of practice are draft codes. We would hope that our work in the coming days and weeks will allow those codes to reflect much of what we have said during our consideration of the Bill.
I am not implying that changes cannot be made to the Bill, but I would hope that they would be considered in concert with changes to the codes. If the Bill becomes an Act, we will soon bring the codes of practice into force, but before doing so, the Secretary of State is required to undertake a consultation process. The Bill specifies that the Secretary of State must consult the Investigatory Powers Commissioner as part of that. The amendment would require the commissioner’s response to consultation on any draft codes of practice, and any views on the content of those codes, to be published alongside the statutory instrument that seeks to bring the codes into force. I recognise the intent; I assume the aim is to increase transparency.
Joanna Cherry
The Minister will have looked at written evidence and have received briefings from various organisations, as all Committee members have, and so will be aware that many bodies have grave concerns about the fact that so much relevant information will be in codes of practice. This minor amendment seeks to address that concern. When the codes of practice are crystallised, proposed revisions will be accompanied by a report from the Investigatory Powers Commissioner that will inform parliamentarians about the utility, and the pros and cons, of proposed revisions. That is the only purpose behind the amendment.
Mr Hayes
I said that I understood the intent, and I meant it. I do understand that the hon. and learned Lady’s intent is both to inform and to provide transparency, but there is another tension at the heart of our discussion about this part of the Bill, and perhaps more generally: the tension between the independence of the commissioner, and what we oblige him to do. It is not just about obligation and discretion; it is about independence and proper parliamentary engagement, involvement, scrutiny and the power of the Executive.
I suppose the point I am making is that the commissioner may well want to publish information in the way the hon. and learned Lady describes, and there is nothing in the Bill that prevents him from so doing. Indeed, the commissioner may take the view that he wants to publish all kinds of things with both surprising and interesting regularity, but that is very much a matter for the commissioner. Indeed, as the hon. and learned Lady knows, some existing oversight commissioners take that approach; they publish without a statutory requirement to take such action.
If the commissioner is, as we wish him or her to be, an independent assessor of those things, the more discretion we give them over such decisions the better, because that allows them to exercise their judgment and, by so doing, affirm their independence.
Joanna Cherry
I hear what the Minister says, but the commissioner will have many demands on his or her time and, as we know, may have a limited budget. The amendment would require the commissioner to furnish parliamentarians with the benefit of his or her expertise and experience when changes are proposed. Does the Minister not accept that such a requirement would be a good thing?
Mr Hayes
I accept that this is a matter for debate, and the way I have approached it reflects that, I hope. These tensions, as I have described them, although creative, are the subject of different opinions. As we have navigated our way through this part of the Bill, it has been clear in our discourse that we are all in the business of trying to perfect the legislation, in the words of the hon. and learned Member for Holborn and St Pancras. I do not think there is an open-and-shut case on very much of this, actually, and you will not often hear a Minister say that, Mr Owen. I hope that we can get to a place where we all feel that the Bill is better for the scrutiny.
Joanna Cherry
I would like to press it to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 843, in clause 208, page 160, line 13, after “determination”, insert
“or ruling or decision, including relating to a procedural matter”
and leave out
“of a kind mentioned in section 68(4) or any decision of the tribunal or a kind mentioned in section 68(4C)”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
The Chair
With this it will be convenient to discuss amendment 841, in clause 208, page 160, line 31, leave out subsection (6).
The Bill provides that an appeal on an error of law will only lie when an appeal raises an important point of principle or practice or there is another compelling reason to grant leave. This amendment would remove this restriction and create a right of appeal against any error in law.
Keir Starmer
The amendments relate to the grounds for appeal. The Bill provides that appeal on an error of law will only lie when an appeal raises
“an important point of principle or practice, or…there is another compelling reason to grant leave.”
The two amendments would remove that restriction and create a right of appeal against an error in law.
The history and background of this is that David Anderson raised the issue in his report last year. He suggested that appeals be permitted on an error of law. When it scrutinised the Bill at the tail end of last year and the beginning of this year, the Joint Committee agreed that an appeal should be permitted on any error of law. It is right that appeals should be allowed on errors of law, so that they can be corrected, and so that the right decision is arrived at on the right legal analysis.
The Government have refused to amend the Bill in the light of those recommendations, maintaining that there needs to be an important point of principle or practice or another compelling reason for granting leave. That is unpersuasive. David Anderson and the Joint Committee were absolutely clear—they were right—that an appeal should lie where there is an error of law.
The Solicitor General
I am afraid that I am not persuaded by the amendments. I am concerned that within the Bill the IPT and the appellate court already have the significant discretion necessary when granting permission to appeal. I am worried that the amendments will have a detrimental effect. There is a risk that we will end up with appeals in cases where there is no significant point of law, and that is frankly a waste of everyone’s time and resources.
I want to deal with the background to clause 208. The Bill represents a significant step. The only route of appeal currently available to complainants from decisions of the Investigatory Powers Tribunal is by reference directly to the European Court of Human Rights. For the first time, we have established a domestic right of appeal, which will enable parties to seek redress here in the UK court system. That will also enable appeals to be heard more quickly. I think we would all agree that that is a massive step forward. Appeals will be heard by the Court of Appeal of England and Wales, or the Court of Session in Scotland or the Court of Appeal in Northern Ireland, and ultimately it will be possible for appellants to seek permission to appeal from the appellant court to the Supreme Court.
I understand the sentiment behind the amendments, but there has to be balance and I think our approach is right. The Investigatory Powers Tribunal or relevant appellant court will be able to grant permission to appeal if it considers that it would raise
“an important point of principle or practice”,
or additionally, if there are any other compelling reasons to grant leave. That gives the courts an appropriately wide discretion when deciding whether permission should be granted. That makes it possible for any case that raises a significant point of law to be dealt with at appellate level.
As hon. Members are no doubt aware, this type of restriction is not unusual. Our approach in the Bill is directly modelled on restrictions that apply to judicial reviews from decisions of an upper tribunal—that is civil procedure rule 54.7A. I consider that the same restrictions should apply to appeals from the IPT.
It would be helpful for me to take the opportunity to put on record the number of cases that were considered by the IPT in 2015. Two hundred and nineteen cases were considered, of which 47%—nearly half—were deemed to be frivolous or vexatious; 30% were given a “no determination”; 17% were out of the IPT’s jurisdiction, withdrawn or not valid; 3% were out of time; and only 4% were found to have any merit to them.
Therefore, although creating an appeal route is very important—I am proud that we are doing that—not having any limits on that route would mean, I am afraid, a considerable amount of taxpayer money and court and agency time and resources frankly being wasted on continuing to manage and defend cases that, sadly, have no grounding in fact or merit in law. That is why I think the appeal route as currently delineated will still allow important cases that need further judicial scrutiny to progress.
Therefore, to strike the right balance, having broken new ground with the domestic right of appeal, I commend the clauses unamended to the Committee and urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
The Solicitor General is right that this is an important step forward, but it also needs to be the right one. I am not convinced that the point about frivolous and vexatious applicants has any bearing or substance, because there has to be an appeal on a point of law and it can be allowed only on a point of law. Therefore, if it is on a point of law, it is difficult to argue that it is frivolous and vexatious. Of course, the amount of those should be reduced—they waste a great deal of time—but this amendment would not increase the number of frivolous and vexatious cases, nor would it give them any grounds for success.
This important point was pressed by David Anderson and the Joint Committee, and I wish to press this amendment to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 842, in clause 208, page 162, line 22, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this section if its disclosure would seriously prejudice—
(a) national security, or
(b) the prevention and detection of crime.
(1E) Publication for the purposes of this section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”’
The Chair
With this it will be convenient to discuss the following:
New clause 20—Power to make declaration of incompatibility with a Convention right—
“(1) Section 4 of the Human Rights Act 1998 is amended as follows.
(2) In subsection (5), after paragraph (f), insert—
‘(g) the Investigatory Powers Tribunal.’”
This new clause enables the IPT to make a declaration of incompatibility under the Human Rights Act.
New clause 21—Openness and the Investigatory Powers Tribunal—
“(1) Within 12 months of the coming into force of this Act, the Secretary of State must make arrangements for an independent review of the procedures of the Investigatory Powers Tribunal to be placed before Parliament.
(2) The Treasury will provide such funds, remuneration or allowances as necessary for the Independent Reviewer appointed to produce his report pursuant to section (1).
(3) The Independent Review in section (1) must consider—
(a) the capacity of the Tribunal to afford redress to individuals when compulsory powers are exercised unlawfully, including in a manner incompatible with Convention Rights protected by the Human Rights Act 1998, and
(b) the conduct of Tribunal hearings and the production of Tribunal decisions which are open, transparent and accessible, except in so far as can be justified in light of a serious risk to life or of physical injury of any person, seriously prejudicial to—
(i) national security, or
(ii) the prevention and detection of serious crime.”
Keir Starmer
We have a long-standing principle of openness and open justice in this country. Case law as long as my arm sets out the importance of open justice. I readily accept that that principle, which we all adhere to, is more difficult to achieve in this field than in other fields, but with these amendments we are really arguing about the default position, not the automatic position.
On page 240 of his report, David Anderson recommended that the IPT be changed—I recognise what the practice is—
“to make open hearings the default and disclose the fact that closed hearings have taken place”.
The Joint Committee on the Draft Investigatory Powers Bill recommendation 74 is that, when making a decision on whether part of a hearing should be open or not, the tribunal should apply a public interest test.
This amendment would make open hearings the default position, which was David Anderson’s preference, but to have a mechanism to change the default position to closed proceedings. It is important that we keep to the principle of open justice. People fought for it for many years, and it is one of the central planks of our justice system. A default position that proceedings are open is in keeping with that principle; the default position set out in the Bill is not. For those reasons, I will press this amendment.
New clause 20 deals with declarations of incompatibility, and speaks for itself. It would amend section 4 of the Human Rights Act 1998 to give the IPT the power to make a declaration of incompatibility. Where there is a problem with legislation and convention rights that cannot be resolved during interpretation, the IPT would have the power to make a declaration of incompatibility, which would then trigger a dialogue with Parliament about what, if any, modifications or alterations to legislation should follow. That has proved worthwhile and effective so far under the Human Rights Act 1998.
The Solicitor General
In prefacing my remarks on the hon. and leaned Gentleman’s arguments, I, too, pray in aid my strong and long-held commitment to open justice. Like him, I practiced it for many years, and I believe fundamentally in it. However, as a parliamentarian, I have come to accept that there are occasions, which need to be very carefully prescribed, when that principle has to be departed from, but that must only be in cases where there is a clear public interest and a necessity that everybody would understand. That is why every time these matters arise—whether it was when the Special Immigration Appeals Commission was created nearly 20 years ago, or when the Justice and Security Act 2013 created closed material proceedings three or four years ago—they are the subject of very intense debate and proper scrutiny. I therefore welcome the opportunity to look closely at the position with regard to the new provisions in the Bill.
The amendment seeks to amend section 68 of the Regulation of Investigatory Powers Act 2000 to provide that the Investigatory Powers Tribunal must hold its proceedings in public unless closed proceedings are in the public interest. As has been outlined, the amendment would restrict the circumstances in which that can take place and would require the appointment of special advocates.
First, on the necessity, we are in something of a transitional period, but I will give the Committee some reassurance. Rule 9 of the tribunal rules, pursuant to section 69 of RIPA, currently states that all proceedings, including oral hearings, should be held in private. The problem is that the rules have not been updated to take into account changes that were introduced by the tribunal many years ago. There was a ruling in the 2003 Kennedy case, which is reported at IPT/01/62 and IPT/01/77, that the tribunal has the discretion to order that hearings take place in public. Happily, since then, in practice the IPT has regularly held open hearings, and copies of its judgments delivered in open proceedings are publicly available on its website.
Keir Starmer
I am not sure that the Solicitor General is right about that. The declaration of incompatibility arises only where the primary legislation requires an outcome that is incompatible with the convention right. By definition, the legislation in place overrides the convention right, which is what bounces it back to Parliament. Technically, he is probably wrong about that. There cannot be a remedy; that is why the amendment is needed.
The Solicitor General
I am interested in that argument, although I am not entirely persuaded by it. I am afraid that the amendment would be a problem across the piece. If courts of lower record could issue declarations, obviously I would not be arguing the point. It would be unusual for us to single out the Investigatory Powers Tribunal as sui generis in this instance.
To return to the point that I was developing, under section 68(5) of the Regulation of Investigatory Powers Act 2000, the IPT is required to make a report to the Prime Minister in the event that it makes a determination in favour of a person that arises from any act or omission made by or on behalf of the Secretary of State. In such circumstances—this may be a helpful and practical point—the Government would of course be required to consider whether legislative change was needed. De facto, our position would be very similar to the result of the declaration of incompatibility.
For example, the IPT recently decided in the Belhaj and Saadi cases, both public judgments, that the regime for certain intrusive surveillance of legally privileged material contravened article 8. I know that this is a slightly different point from declarations of incompatibility pursuant to section 19, I think—I am sure Hansard will help me—of the Human Rights Act 1998. The tribunal is already making findings on the compatibility with rights under the convention.
Finally, I will deal with the question of review of the tribunal. As Committee members will know, the use of investigatory powers has been the subject of extensive reviews, to which we have referred repeatedly in this Committee’s deliberations. None of those reports recommended the wholesale change to how the IPT operates that the amendment suggests. Bearing in mind that we have ongoing and detailed scrutiny and important and recent reviews, I do not believe that we will get added value from a further review. The new clause would also require that any independent review must consider two issues.
The IPT can of course make clear any concerns that it might have about the operation of the tribunal. The tribunal published a report only recently, and it did not express any concerns about its effective operation, so I do not think that a further review will add anything. I believe that the key concerns identified in the amended clause have been and are being addressed. On reasons of lack of necessity, I therefore submit that the new clause would not take us any further. On that basis, I invite the hon. and learned Gentleman to withdraw the amendments and new clauses.
Keir Starmer
I will not press new clauses 20 and 21, but I will press amendment 842 to a vote on the open justice principle.
Question put, That the amendment be made.
Investigatory Powers Bill (Fifteenth sitting)
Tuesday 3rd May 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 May 2016 - (3 May 2016)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Before we begin, this sitting is officially due to finish at 5.30 pm, but we will continue until 6.30 pm, at which point there will be a break. The Committee will reconvene at 7 o’clock with Mr Owen in the Chair.
Clause 212
Combination of warrants and authorisations
Question proposed, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
The clause introduces schedule 8. I seek an assurance for the record from the Minister, but if it is not convenient to deal with this point now, it can be dealt with in some other way. Schedule 8 deals with the supplementary provisions for combined warrants. Having been through it, I think its effect is that any of the conditions necessary for any single warrant will apply notwithstanding that there is a combined warrant—in other words, none of the safeguards is lost by virtue of the combination—and the duration of the shortest warrant will apply. I am pretty sure that that is the intention, but it would be helpful to have that to confirmed for the record, so that we are clear that none of the safeguards is lost when warrants are combined.
The Minister for Security (Mr John Hayes)
With brevity that I know you will welcome, Ms Dorries, I can say that that is certainly so.
Question put and agreed to.
Clause 212 accordingly ordered to stand part of the Bill.
Schedule 8 agreed to.
Clause 213
Payments towards certain compliance costs
Keir Starmer
I beg to move amendment 844, in clause 213, page 165, line 26, leave out subsection (6) and insert—
“(6) The appropriate contribution shall represent the full amount of the relevant costs, subject to any audit process under subsection (4)”.
This amendment would ensure that the Government meets 100% of the compliance costs and that there is full cost recovery for Communication Service Providers (CSPs) implementing the legislation.
It is a pleasure to serve under your chairmanship, Ms Dorries. The amendment speaks for itself, I think. The clause deals with payments towards certain compliance costs and subsection (1) deals with appropriate contributions. As the Committee will know, there has been real concern about what the cost of compliance will be for those called upon to comply and what contribution they will receive toward their relevant costs. The clause allows for “an appropriate contribution”. The amendment would ensure that the Government met 100% of the compliance costs and there was full cost recovery for communication service providers implementing the legislation..
There is concern among providers about what they will be expected to do by way of compliance and what the cost will be. It may be convenient for the Minister to deal with the estimated costs, because £170 million was mentioned at one stage but I am not sure that that is a final figure as far as the Government are concerned.
Mr Hayes
The amendment is designed to ensure that the Government’s commitment to cost recovery for providers is explicitly provided for in the Bill. The hon. and learned Gentleman is right to raise this issue again, reflecting what we heard during the witness session when we debated the issue in part. In his evidence, Mark Hughes said he was aware that
“Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation.”
He went on to say that
“the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 45-46, Q126.]
And I am clear, quoting the Home Secretary, that
“100% of the compliance costs will be met by the Government.”—[Official Report, 15 March 2016; Vol. 607, c. 821.]
The hon. and learned Gentleman asks what that means in practice. The £174 million he mentioned is not a cap, but an estimate. It is dealt with in the impact assessment, and there is no cap in the impact assessment. We will meet costs such as they arise. We are determined to make sure that the Bill works and is not inhibited by any doubts about the cost of its implementation. Clearly, future Governments will inherit this legislation. It is worth emphasising that the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, so it has survived three Governments of different colours or combinations of colours—we used to be more rainbow-like than we are now, which is actually quite welcome, by the way. We are clear that 100% means what it says.
Above and beyond that—the hon. and leaned Gentleman did not ask for this, but I will add it—we need to be clear that the providers are consulted on any changes to the cost model and that they will be able to seek review of any variation to the notice that affects the level of their contribution. To sum up: we have an estimate, not a cap; a determination that 100% means 100%; a willingness to have a proper input into this; and an assurance—which I think is what the hon. and leaned Gentleman really seeks—that the Government will cover the costs so that the Bill does what it should.
Christian Matheson (City of Chester) (Lab)
What a great reassurance it is to see you in the Chair, Ms Dorries. I will be very brief. I welcome the contributions of my hon. and learned Friend the Member for Holborn and St Pancras and the Minister for Security. As Committee members know, I have been banging on about this issue—
Christian Matheson
—rather tediously. The Minister says, “Yes,” but I have to point out that he said it before I said “rather tediously”. I welcome the Minister’s assurance as I have been concerned about communications service provider security since Second Reading. Will the Government consider providing security advice and testing for the smaller communications service providers, in addition to the financial contribution that they are making?
Mr Hayes
I will make only two points in reply to the hon. Gentleman. First, when he describes it as “banging on”, he understates his contribution. I see it more as informed, eloquent and sensible inquiry. Secondly, he is absolutely right that the small providers need to be fully involved at all stages. It may be fair to say that the bigger providers have the mechanisms to implement the requirements for data retention more straightforwardly, so we need to ensure that that does not mean that small providers are in any way disadvantaged. I acknowledge that point, and he is right to make it elegantly. He should never apologise—at least to me—for banging on about anything.
Keir Starmer
I am grateful to the Minister for setting out that assurance for the record. That will reassure those who are concerned about this issue. In those circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 213 ordered to stand part of the Bill.
Clauses 214 and 215 ordered to stand part of the Bill.
Clause 216
National security notices
Keir Starmer
I beg to move amendment 853, in clause 216, page 166, line 36, after “State”, insert
“following approval by a Judicial Commissioner”.
The Chair
With this it will be convenient to discuss the following:
Amendment 854, in clause 216, page 166, line 41, after “State”, insert “and a Judicial Commissioner”.
Amendments 853 and 854 would require judicial authorisation for national security notices. This would also extend the “double lock” standard that is set in other parts of the Bill.
Amendment 845, in clause 217, page 167, leave out lines 20 and 21 and insert—
“(1) The Secretary of State may, following approval by a Judicial Commissioner that the notice is justified, practicable, necessary and proportionate, give a relevant operator a notice (a ‘technical capability notice’)”.
This amendment would require judicial authorisation for Clause 217 and bring the clause in line with other provisions within the bill that require judicial authorisation.
Amendment 855, in clause 217, page 167, line 20, after “State”, insert
“following approval by a Judicial Commissioner”.
This amendment would require judicial authorisation for technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.
Amendment 852, in clause 220, page 171, leave out lines 1 and 2 and insert—
“(9) The Secretary of State may, after considering the conclusions of the Board and the Commissioner, and with approval of a Judicial Commissioner—”
This amendment would require judicial authorisation for these clauses and bring them in line with other parts of the bill.
Amendment 859, in clause 220, page 171, line 4, at end insert—
“(9A) Any variation made under subsection (9) must be approved by a Judicial Commissioner.”
This amendment would require judicial authorisation for the variation and revocation of national security and technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.
Keir Starmer
The amendments go in pairs: amendments 853 and 854 are to clause 216, amendments 845 and 855 to clause 217 and amendments 852 and 859 to clause 220. They all have the same purpose and intent: to subject the powers in the clauses to the double-lock mechanism—in other words, to involve the judicial commissioners in those powers.
Clause 216 is concerned with national security notices. Subsections (1) and (2) make the power to issue such notices subject only to the test that they be
“necessary in the interests of national security”
and “proportionate”. There is no specific reference to any operational purposes; it is a very broad power. Once a notice is issued, subsection (3) takes effect:
“A national security notice may…require the operator to whom it is given—
(a) to carry out any conduct, including the provision of services or facilities, for the purpose of—
(i) facilitating anything done by an intelligence service under any enactment other than this Act, or
(ii) dealing with an emergency (within the meaning of…the Civil Contingencies Act 2004);
(b) to provide services or facilities for the purpose of assisting an intelligence service to carry out its functions more securely or more effectively.”
The Secretary of State issues a notice; once that notice is issued, the requirement on the operator is very broad. To be fair, subsection (4) makes it clear that a national security notice cannot be used to sideline or cut across a warrant or authorisation that is required under the Act, but the clause does make a very wide-ranging power available to the Secretary of State and it seems subject to pretty well no check, balance or safeguard.
The amendments would subject the procedure to the double-lock mechanism, to ensure that such a notice would go before a judicial commissioner, who would consider whether it was in the interests of national security and proportionate under subsections (1) and (2). The Joint Committee raised concerns about this issue when it looked at the draft Bill, and in particular how the lack of a definition of national security means that the power granted by the clause is very wide indeed.
Joanna Cherry (Edinburgh South West) (SNP)
Does the hon. and learned Gentleman agree that, in the absence of a definition of national security, it is difficult to foresee the kinds of activity or intrusion that obligations under the clause could entail? Is it not therefore providing a blank cheque power to the Government?
Keir Starmer
I agree. This is one of the rare occasions on which the Bill does not set out the procedure for what happens before the Secretary of State considers the exercise of her function. In other areas, we have seen particular requirements for what must be set out in the application and in the warrant—there is a bit more detail. Here, the notice procedure does not include any details of the formalities of the Secretary of State’s consideration or what must be set out in a notice; nor does the Bill provide any safeguard through the judicial commissioners, so not having a definition of national security means that the power is extremely wide and unchecked.
My amendments go only to the process and not to the substance of clause 216, but if they were made, at least a separate pair of eyes would look at the notice and consider whether the test of necessity and proportionality was met. That in itself would be an important safeguard in keeping with the model that runs through the Bill.
The Solicitor General (Robert Buckland)
It is a pleasure to serve again under your chairmanship, Ms Dorries. I have listened carefully to what the hon. and learned Gentleman and others have said about their concerns regarding the provisions, but may I reassure him and put to bed the notion that somehow this is a back door or a blank cheque to allow the authorities to do what they like when it comes to interference with the privacy of individuals? Far from it. I will explain as far as I can the purpose of the type of warrantry, particularly the national security notice, that we are talking about, and indeed the technical proficiency provisions as well.
An example of the type of support that might be required would be the provision of services or facilities to help the intelligence agencies in safeguarding the security of their personnel and operations. A notice might typically require a communications service provider to provide services to support secure communications by the security and intelligence agencies—for example, by arranging for a communication to travel via a particular route in order to improve security. A notice may additionally require the confidential provision of services to the security and intelligence agencies within the communications service providers, such as by maintaining a pool of trusted staff for the management and maintenance of sensitive communications services. I hope that gives the hon. and learned Gentleman some insight into what we are talking about here.
Keir Starmer
I am grateful for that indication, but I am not sure why that is an argument for not subjecting what could be a wide-ranging power to the double-lock mechanism, which has been the preferred safeguard for such powers in the Bill.
The Solicitor General
There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.
I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. 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. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.
Joanna Cherry
I hear what the Solicitor General says about the measure only facilitating preparatory steps, but under the terms of clause 218(8) we will never know whether the notices exist or their contents, so we will not be able to know whether we are dealing with preparatory steps or whether they could go beyond that.
The Solicitor General
I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.
Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.
Keir Starmer
I am listening carefully to the Solicitor General. He says that the notices are not a gateway for preparatory steps to become steps that invade privacy, but where in the Bill is the provision that prevents that happening? The only restriction is subsection (4), which does not achieve that end.
The Solicitor General
With respect, I do not think that is necessary because any agency that sought to use this type of notice in order to get around the double-lock provisions in the Bill would soon come a cropper with the commissioner. That important oversight means that organisations are not operating in a vacuum; they will be held to account if they try to misuse these notices in the way that the hon. and learned Gentleman and others fear.
As I have said, we have the powers of review by the IPC. We also have the provision, pursuant to clause 220(5)(b) and (7), that the Secretary of State must consult the commissioner if a notice is reviewed, and the commissioner will then consider the proportionality of the matter before reporting conclusions to the Secretary of State. We have the checks and balances that the hon. and learned Gentleman rightly wants within the mechanism.
On amendments 853 and 854, I would say this: the role of the Secretary of State in issuing national security notices rightly reflects the responsibility of the Executive in protecting our national security; conversely, the role of the judicial commissioner in approving the issuing of warrants under the Bill reflects the particular and proper sensitivity regarding interference with private communications. We have got the double lock in place to ensure that, before the fact, a senior judge has to be satisfied that any interference with privacy is justified. The Bill explicitly prohibits—this is an important point—the issuing of national security notices for the primary purpose of obtaining private information, and the double lock then applies to the use of the most sensitive powers. We need to focus on the need for the double lock in relation to applications that result in the acquisition of private information. These types of notices do not permit the authorities to do that, so the amendments are unnecessary.
Amendments 845 and 855 deal with technical capability notices. Clause 217 builds on the current power provided for under the Regulation of Investigatory Powers Act 2000, where a company can be obliged to maintain a permanent interception capability in order to ensure that when a warrant is served, a company has the infrastructure in place to give effect to it securely and quickly. Again, any warrant served will have been reviewed by a judicial commissioner; he or she will play an important part in overseeing the operation of technical capability notices and any appeal that may be lodged against them. The commissioner will also be consulted about the making of regulations that will provide more detail about the operation of these types of notices, and those regulations will be put before Parliament for approval. Plenty of the checks and balances that the hon. and learned Member for Holborn and St Pancras, others interested in Bill and I would expect and want to see are here.
I am not persuaded of the need for amendments 852 and 859, because clause 220 already sets out the role of the IPC in the process of review and the actions that the Secretary of State must take in that process. The IPC will be integral to any review, because the Secretary of State must consult the commissioner, who will then consider whether the notice is proportionate. Inevitably, considerable weight will be afforded to the advice of the commissioner. The role of the commissioner provides an opportunity for the person on whom the notice has been served and for the Secretary of State to present evidence. The conclusions of the commissioner will be reported to the Secretary of State and to the person who has made the reference. After consideration of the conclusions, the Secretary of State may decide to confirm the effect of the notice, to change or vary it, or to withdraw it. Until that decision is made, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.
In a nutshell, there are plenty of adequate safeguards to alleviate the concerns expressed by the hon. and learned Gentleman. I urge him to withdraw his amendments.
Keir Starmer
I listened carefully to the Solicitor General, and I am grateful to him for setting out how he envisages the notices operating. The difficulty is that there is a mismatch between what he says is their intended operation, and the safeguards in the clause. For me, subsection (4) does not do what he contends it does.
I am also concerned about clause 217. We will get on to that in more detail in a moment, but it is a wide-ranging clause on the maintenance of technical capability, which again ought to be subject to the double lock.
I apologise to the Committee, but on this occasion I will press the amendments in the group to a vote. In the past, in relation to a number of clauses, I have tested the Committee on the first one, but on this occasion I am not sure that I can do that. I think this will be the only occasion on which I will test the patience of the Committee, but clauses 216 and 217 are conceptually different and do not seem to be run as a group. I am afraid that I will press for a vote—as I say, I will not make a habit of it, and I have not done so before.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 846, in clause 217, page 168, line 8, at end insert—
‘(4A) A notice may not impose upon the relevant operator any obligations relating to the removal of electronic protection applied by or on behalf of that operator to any communications or data unless the relevant operator or a person acting on its behalf retains the technical ability to remove the electronic protection from such communications or data.”
This amendment would provide clarity and legal certainty for industry that the Government will not require back doors to be installed into products and services, is not seeking to weaken or restrict the use of encryption and that companies cannot be required to remove encryption if they do not have the means to do so at their disposal.
The Chair
With this it will be convenient to discuss the following:
Amendment 847, in clause 217, page 168, line 16, at end insert—
“(e) persons generally held to be representing users and privacy interests in order to assess the impact of any such Regulations on users.”
This amendment would ensure that privacy protections form an overarching part of the Bill and apply across the full range of investigatory powers afforded to the security services.
Amendment 848, in clause 217, page 168, line 24, leave out subsection (8) and insert—
“(8) A technical capability notice may only be given to persons outside the United Kingdom (and may require things to be done, or not to be done, outside the United Kingdom) where it would not cause the person to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services.”
This amendment would remove all provisions within the Bill that have extraterritorial reach and undermine the long term objective of creating a long term, international framework for law enforcement to gain access to data held overseas and resolves conflict of laws situations that may otherwise arise by providing the Secretary of State with the power to serve such notices without having to take account of domestic legal obligations to which the recipient is subject.
Amendment 857, in clause 217, page 168, line 30, at end insert—
“(11) A person shall not be liable to have a technical capability notice served on him in accordance with regulations under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than—
(a) the means by which he provides a service which is not a telecommunications service; or
(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.”
This amendment would exclude (under powers in RIPA section 11(4)) those services that have a communications element, but are primarily not a communication service. This limits the very broad range of “telecommunication services” that could be required to build a technical capability under this Part.
Amendment 849, in clause 218, page 168, leave out lines 37 and 38, and insert—
“(3) Before giving a relevant notice, the Secretary of State must provide evidence that the notice is justified, necessary practicable and proportionate, having, among other matters, taken into account—”
Amendment 850, in clause 218, page 168, line 45, at end insert—
“(f) the effect on the privacy and human rights of people in the United Kingdom and outside the United Kingdom”
Amendments 848 to 850 would make explicit the requirement on the Home Secretary to justify the use of a power as intrusive as a technical capability notice. It will also require the Home Secretary to take account of the full effects of such a notice, particularly on people and companies based overseas.
Amendment 858, in clause 218, page 169, line 7, leave out—
“A technical capability notice may be given to a person outside the United Kingdom”
and insert—
“Where a technical capability notice is to be given to a person outside the United Kingdom, the notice shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances”
This amendment would require that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant.
Keir Starmer
This important clause is causing a great deal of concern to operators that may be called upon to comply with a notice. The clause provides for a power to be vested in the Secretary of State to give a relevant operator a technical capability notice
“imposing on the relevant operator any applicable obligations specified in the notice,”
and
“requiring the person to take all the steps specified in the notice for the purpose of complying with those obligations”.
That is a very wide power, and the concern is about the extent of it. In a moment, I will refer to the code of practice, which sets out some of the capabilities that might be required.
It is clear that the power includes taking steps relating to encryption. I say that for two reasons. Subsection (4) lists in paragraphs (a) to (e) the obligations that may be specified in regulations. They include obligations
“to provide facilities or services of a specified description”
and obligations relating to
“apparatus owned or operated by a relevant operator”
or to
“the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”.
That is clearly veering into encryption. Obligations may also relate to
“the security of any postal or telecommunications services provided by a relevant operator”
or
“the handling or disclosure of any information.”
If one reads ahead, clause 218(4) deals with further provisions on notices under clauses 216 and 217, stating:
“Where the relevant notice would impose any obligations relating to the removal by a person of electronic protection applied by or on behalf of that person to any communications or data, in complying with subsection (3) the Secretary of State must in particular take into account the technical feasibility, and likely cost, of complying with those obligations.”
The concern of many who might be called upon to comply with the obligations is about the wide-ranging nature of the power.
This also goes deep into the debate about encryption. It is absolutely clear that a notice could require protection to be removed, and the clause envisages that being the case. That becomes clearer when one reads the “Interception of Communications” draft code of practice from chapter 8 onwards. If one reads paragraphs 8.1 to 8.94, one sees what is in fact a power that allows the Secretary of State, through this mechanism, effectively to take control of a capability of a service provider. Paragraph 8.1 states:
“The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. Small companies (with under 10,000 users) will not be obligated to provide a permanent technical capability”.
Paragraph 8.3 then lists the wide range of obligations that can be imposed in a notice under this clause.
Paragraph 8.4 of the draft code states:
“An obligation placed on a CSP to remove encryption only relates to electronic protections that the company has itself applied to the intercepted communications (and secondary data), or where those protections have been placed on behalf of that CSP, and not to encryption applied by any other party.”
That is very important provision, which I think I am right to say was clarified as a result of a recommendation from prelegislative scrutiny. The difficulty—I am anticipating the discussion we are about to have—is that this crucial issue is dealt with in the code of practice and not in the Bill. The concern expressed in the evidence given to the various prelegislative bodies and to the Committee was that companies will be obliged to remove the protections in their own systems. Paragraph 8.4 is of some comfort to them because it makes it clear that the obligation would only relate
“to electronic protections that the company has itself applied”
and not to other encryption—but the real problem is that paragraph 8.4 is in the code of practice and not in the Bill. That needs to be rectified. We cannot leave something as important as that in the code of practice. It goes to the heart of the power in the clause. It is far and away the biggest cause for concern among CSPs, yet it is not dealt with in the Bill. The Bill provides for a permissive, rather than a restrictive, regime—if I am wrong about that, I will happily take an intervention.
Paragraph 8.6 of the code of practice clarifies that:
“While an obligation to remove encryption may only relate to protections applied by or on behalf of the company…there will also be circumstances where a CSP removes encryption from communications for their own business reasons. Where this is the case, an intercepting agency will also require the CSP, where applicable and when served with a warrant, to provide those communications in an intelligible form.”
The code then makes provision for giving a notice, for the disclosure of technical capability notices, and for their review and variation. Paragraph 8.27 and 8.28 are very wide-ranging. Paragraph 8.28 states:
“CSPs subject to a technical capability notice must notify the Government of new products and services in advance of their launch, in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide a technical capability on the new service.”
That goes deep into territory hitherto unregulated in this way; CSPs will be required to give the Government notice of their new products and services, so that the Government can consider whether to vary a notice that already applies to them. We can see why the service providers are so concerned about that capability.
Pressing on through the code of practice, we see that the contribution of costs for the maintenance of a technical capability is dealt with from paragraph 8.43. Again, these provisions give an indication of the breadth of the capability covered by the clauses of the Bill. Paragraph 8.43 states:
“Section 213 of the Act recognises that CSPs incur expenses in complying with requirements in the Act, including notices to maintain permanent interception capabilities under Part 9. The Act, therefore, allows for appropriate payments to be made to them to cover these costs.”
In a sense, the requirement for CSPs to give notice when they have new or different services and to maintain permanent interception capabilities when they would not otherwise do so means the taking control of their services for the purposes of the Act.
Joanna Cherry
I respectfully support everything that the hon. and learned Gentleman has said.
The Solicitor General
In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.
Keir Starmer
It is noticeable that, for obvious reasons, necessity and proportionality have been written into relevant clauses throughout the Bill, but here, I think for the first time, we have a wide-ranging power with no such test—unless I have missed it, in which case I will happily concede the point.
The Solicitor General
In strict terms, the hon. and learned Gentleman is right—I am looking at clause 218 in particular. I think that subsection (3) might help him, because although we do not have the words “necessity” and “proportionality” there, the matters to be taken into account lead one to conclusions based on necessity and proportionality, and perhaps do so in a more prescribed way that is more helpful to the decision maker. Subsection (3)(a) to (e) addresses the hon. and learned Gentleman’s point, and I put it clearly on the record that the principles of necessity and proportionality are part and parcel of the tests to be applied.
I also note that necessity is required under clause 217(6), which relates to the steps specified in a technical capability notice. I do not know whether that helps the hon. and learned Gentleman. I will certainly consider the issue carefully, but on the face of it, I do not think there is a worry of the sort that he envisages.
Joanna Cherry
The Intelligence and Security Committee described the clause as a
“seemingly open-ended and unconstrained power”.
Does the Solicitor General not agree that it is therefore essential that the tests of necessity and proportionality are spelled out in the clause, as they are in other parts of the Bill?
The Solicitor General
I hear the hon. and learned Lady, but I am not convinced that the basis of her argument is right given the breadth of the power. As I said in the context of national security notices, the technical capability notice is only a preliminary step. It will allow the subsequent implementation of a warrant, which will then be subject to the tests of necessity and proportionality. I would not want the Committee to operate under a misapprehension. It is my strong, and I hope clear, assertion that we are dealing with an earlier stage of the process, so we should not be driven to the conclusions that I know critics of the Bill want us to reach.
May I deal with encryption, which, as the hon. and learned Gentleman rightly characterised, is at the heart of the matter? I put it on the record that the Government recognise the vital importance of encryption. It has become part of our daily lives. It keeps our personal data and intellectual property secure and ensures safe online commerce, and the Government work closely with industry and business to improve their cyber-security. I can reassure the Committee that in the preparation of the code of practice, there has been close consultation with the interested parties in the industry to ensure that it comprehensively reflects the realities and needs of those who operate in this sphere. Not only does the code of practice replicate the provisions of RIPA, but it goes further, with a degree of specificity that is not possible in primary legislation. It will be a flexible, living instrument that will form a clear prospectus within which everyone can work. I make no apology for the measure being in a code practice, which is where it should be, rather than in primary legislation. With the best will in the world, we all know that it is difficult to amend primary legislation and ensure that it keeps pace with the somewhat breathtaking changes that occur in this particular field of operation.
I also want to talk about the role of GCHQ, which plays a vital information assurance role and provides advice and guidance to allow the Government, industry and the general public to protect their IT systems and use the internet safely. As the director of GCHQ, Robert Hannigan, made clear in his speech on 8 March:
“I am accountable to our Prime Minister just as much, if not more, for the state of cyber security in the UK as I am for intelligence collection.”
In the past two years the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including some of the big names that underpin business here in the UK. In September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with detecting a vulnerability in its operating system for iPhones and iPads, and we all know where that vulnerability could have led. The vulnerability was fixed as a result of that intervention, so the suggestion, which I know has not been advanced in this Committee—and I hope will not be—that the Government are opposed to encryption, or would legislate to undermine it, is wholly wrong.
We have to ensure that we have the necessary capabilities to keep our systems safe. Encryption is now, in effect, the default setting for most of our IT products and online services, and although it can be a power for good in keeping the law-abiding safe and secure, sadly it is used easily and all too cheaply by terrorists, paedophiles and other criminals. Therefore it can only be right that we retain the ability to require telecommunications operators to remove encryption in strictly limited circumstances, with strong controls and safeguards, so that we can address the increasing technical sophistication of those who would seek to do us harm. If we do not do that, we must simply accept that there are areas online that are beyond the reach of the law, where criminals can go about their business unimpeded and without the risk of detection. I do not accept that, and I know the general public do not accept it either. That is our starting principle.
Joanna Cherry
Clause 218(8) and (9) provides that the recipient of a notice must comply with it but must not disclose either its existence or its contents. Does that mean that if an Apple against the FBI scenario were to occur in the UK, Apple would not be able to disclose even the fact that it had been served with a notice, let alone challenge it in court? That is how I read it.
The Solicitor General
Not without the permission of the Secretary of State. I will return to the mechanism in question, but I am grateful to the hon. and learned Lady for raising that point. I am sure I will be able to provide her with clarity as I develop my remarks.
The starting principle is shared by David Anderson, who in his important review said:
“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world.”
That view was shared by the Joint Committee on the draft Bill and is shared by the Select Committee on Science and Technology, both of which recognise that, in tightly prescribed circumstances, it should remain possible for our law enforcement and security and intelligence agencies to be able to access decrypted communications or data. That is what clauses 217 and 218 are all about: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances, subject to rigorous controls.
Keir Starmer
I looked carefully at that subsection, but perhaps the Minister could explain why it is a limiting provision. It is a requirement provision as far as the notice is concerned, but on the face of it, encryption is not limited to protection applied by, or on behalf of, the person themselves. It tells us how that situation would be dealt with, but it is not limited to that.
The Solicitor General
I have been interested in the clause for a while, because there are issues about what “relevant notice” means, for example. I assure the hon. and learned Gentleman that that applies only to technical capability notices, not national security notices. I will carefully consider how we can make that absolutely clear, and in that context I will have another look at the how the clause is worded. I want to put beyond any doubt the fact that the clause relates only to a technical capability notice and does not relate to third parties. That has been an important undertaking that we have given.
Mr Hayes
Deliberating on the interesting discourse that has taken place between the Solicitor General and the hon. and learned Member for Holborn and St Pancras, I take the point that the hon. and learned Gentleman makes about necessity and proportionality running as a theme throughout the Bill. My hon. and learned Friend the Solicitor General is of course right that these are preliminary measures, and therefore once an outcome that has been tested for proportionality has been reached, that will not be a problem. I say to him that there is an argument for taking that into account and making it even clearer, either in the supporting documentation or in the Bill.
The Solicitor General
I am grateful to my right hon. Friend, and I will do that.
Before I go further, I will deal with the point that the hon. and learned Member for Edinburgh South West made about Apple. My understanding is that the process will give her some reassurance. In that scenario, Apple, as the recipient of the notice, could refer it back to the Secretary of State, who in turn must then consult the technical advisory board and the IPC before deciding whether to proceed further with the notice. If the Secretary of State proceeded, it would then be judicable in the courts, which would determine whether the notice could be enforced. It is quite similar to the scenario that we discussed in the context of national security notices. I hope that gives her some assistance.
Keir Starmer
I have looked at this issue in the past day or two, and I was concerned about the implication that on the face of it, one could not challenge the provision in court, because there is an absolute bar on disclosure. Am I right in assuming—if I am, it should be on the record—that the Secretary of State will give permission, where appropriate, for a legal challenge to be brought? In other words, there could be disclosure for the purposes of legal proceedings.
The Solicitor General
On the face of it, that has to follow. If any clarification is needed on that, I am sure I can assist as I further develop my remarks.
I was dealing with the process of consultation before the giving of a notice, and we have had the Apple example. I would like to develop the importance of the draft codes of practice, which the hon. and learned Gentleman has referred to.
Suella Fernandes (Fareham) (Con)
The Solicitor General is talking about the power of review in clause 220, which should be read with the power to issue notices. That is important because it obliges the Secretary of State to consult the technical advisory board and the Investigatory Powers Commissioner. That process was endorsed by EE, a communications service provider, in its evidence to the Joint Committee on this very point.
The Solicitor General
I am grateful to my hon. Friend, who provides an example of the sort of dialogue that will be very much part of the process. There will not be mere diktat without further discussion. I was about to develop that point in the context of the draft codes of practice, because they make it clear that should a telecoms operator have concerns about the reasonableness, cost or technical feasibility of any requirements set out in a notice, which of course would include any obligations to remove encryption, they should be raised during the consultation process. That is the dialogue that we have talked about. Also, a telecommunications operator that is given a technical capability notice may refer any aspect of it—again, I gave an example earlier—including obligations relating to removal of encryption, back to the Secretary of State for review. We have dealt with the consultation process set out in the Bill.
The Bill makes it absolutely clear that in line with current practice, obligations placed on telecommunications operators to remove encryption may relate only to encryption by or on behalf of the Government. That is the point I was making about subsection (4).
Lucy Frazer (South East Cambridgeshire) (Con)
I wonder whether clause 217(3) is relevant in the context of what we are discussing. It shows that the Secretary of State can impose the requirements only in so far as they are practicable. The Secretary of State will be prevented from requiring a service provider to do something that it cannot do, for example because a third party has encrypted the material and it is not physically capable of assisting.
The Solicitor General
I am grateful to my hon. and learned Friend, who is right to pray in aid that subsection, which sets out the bones on which we flesh out the procedure in the code of practice.
Christian Matheson
I am getting a bit confused. My understanding was that these provisions applied only to communications service providers. I think it was the hon. and learned Member for Edinburgh South West who raised the question of Apple, which to my mind is not a communications service provider, but the Minister responded in the same terms. Will he clarify who exactly we are talking about and who the provision is intended to cover?
The Solicitor General
The hon. Gentleman is right to make that important point and to steer us back on to the straight and narrow. I am not criticising the Committee for trying to bring the Bill to life with some examples. We are indeed talking about communications service providers, not third parties, which is important in the context of the Bill.
Joanna Cherry
Are we not concerned here with the “relevant operator”, which is defined in clause 217(2) as
“a postal operator…a telecommunications operator, or…a person who is proposing to become a postal operator or a telecommunications operator.”?
That definition is the basis of the concern for companies such as Apple.
The Solicitor General
The hon. and learned Lady is absolutely right to bring us back to clause 217(2). The problem that hon. Members are anticipating is that the provisions will somehow catch parties that no one would regard as appropriate. I think I have given clear assurances on that third party problem.
Sir Simon Burns (Chelmsford) (Con)
I am very grateful to my hon. and learned Friend, and I do not want to be unhelpful, but I would like some clarification regarding Apple. As he is aware, Apple refused to do what the FBI asked. Although the case was never ultimately determined by the courts, because the FBI managed somehow to break open the machine and retrieve the information, how would the clause affect a similar situation if a provider such as Apple refused point-blank to co-operate, just as it did with the FBI?
The Solicitor General
In endeavouring to answer my right hon. Friend’s point, may I deal first with the question about telecommunications operators? Some assistance may be gained from clause 223(10), where a telecommunications operator is defined in a way that includes Apple. The famous Apple case—the California case—was about the use of a password, which is slightly different from the question of encryption, but it does demonstrate the important tussle between the need to balance public safety and privacy. In that case, the FBI, with an appropriate search warrant, was asking for the chance to try to guess the terrorist’s passcode without the phone essentially self-destructing—after so many tries, everything gets wiped.
We are talking about an attempt to obtain communications data within the robust legal framework that we have set out, with the double lock and all the other mechanisms that my right hon. Friend and the Committee are familiar with. I am grateful to him for raising that case, but there are important differences that it would be wrong to ignore. In a nutshell, without the powers contained in the Bill, a whole swathe of criminal communication would be removed from the reach of the authorities. That is not in the interests of the constituents he has served with distinction for well over a quarter of a century—he will forgive me for saying that—or any other of the constituents we represent.
I was going to come back to the obligations imposed under a technical capability notice, with particular regard to the removal of encryption. The obligations imposed under such a notice will require the relevant operator to maintain the capability to remove encryption when it is later served with a warrant notice or authorisation. That is different from merely requiring it to remove encryption. In other words, it must maintain the capability, but there then needs to be the next stage, which is the warrant application and the notice of authorisation, where there is of course the double lock. The company on which the warrant is served will not be required to take any steps, such as to remove encryption, that are not reasonably practicable.
In a nutshell, this measure is about not an interference with privacy but sets out the preparatory stage before a warrant can be applied for. The safeguards provide the strict controls that I assure the Committee are needed in this sphere of activity. We are maintaining and clarifying the existing legal position.
Joanna Cherry
I am anxious to clarify what the Solicitor General said about the justiciability of the issuing of such a technical notice. As far as I can see, the Secretary of State is the gatekeeper to justiciability, because the contents of a notice can be revealed only with his or her permission. Where does it say that that can be justiciable, because I cannot find it?
The Solicitor General
I think it is clause 220, but I will get some further assistance on that point for the hon. and learned Lady before I resume my seat. I am grateful for that intervention.
The Bill does not drive a coach and horses through encryption. It does not ban it or do anything to limit its use. A national security notice—we debated this matter on clause 216—cannot require the removal of encryption, which further supports my argument that there is no blank cheque in the context of these notices. On the issue of civility, rather than keep this Committee waiting, I will write to the hon. and learned Lady to clarify the point that she rightly raised.
Victoria Atkins (Louth and Horncastle) (Con)
This is a general point. Although we are examining this Bill in detail, there will of course be an ongoing debate, particularly as the technical companies tussle with the public, about what the public find acceptable. Those companies should not think that the debate ends here; they will have to justify their actions to the public in future.
The Solicitor General
My hon. Friend is absolutely right. The code of practice has been drafted in that real-life context. It will no doubt be amended and looked at—it will be a living document—as this technology develops and as we move forward. With this clause, we are trying—I do not like this phrase, but I have to use it—to future-proof the legislation to make it resilient so that it lasts and to ensure that this House does not have to return to it time and again to respond to the challenges that increased and enhanced IT present.
Lucy Frazer
My hon. and learned Friend referred to clause 220, which indeed does give the person who receives the notice the power to give it back to the Secretary of State, who then has to consult the Technical Advisory Board and the Investigatory Powers Commissioner, who will then take evidence from those people.
The Solicitor General
I am glad that my hon. and learned Friend has reminded us of that. I referred earlier to that consultation process. The next stage is when the Secretary of State decides to proceed. I will consider that issue even more carefully to ensure that the Committee is furnished with as much information as possible before Report.
Let me deal with the amendments tabled in the name of the hon. and learned Member for Holborn and St Pancras and others. On amendment 846, the Bill already makes it absolutely clear that a communications service provider will not be obligated to remove encryption where it is not reasonably practicable for them to do so. I do not think the amendment adds anything, and in many cases it would have the effect of inhibiting law enforcement agencies and the security and intelligence services from working constructively with tele- communications operators as the technology develops. I am sure that that is not the intention of the amendment. Depending on the individual company and the individual circumstances, it may be entirely sensible for the Government to work with a company to determine whether it would be reasonably practicable for it to take steps to develop and maintain the technical capability to remove the encryption it has applied to communications or data.
My worry about the amendment is that we would end up with communications services that can be used by criminals and others to communicate with each other unimpeded. We know that internet gambling sites, which have chat room provisions, are used by criminals for entirely unrelated criminal activities. I am sure that that is not the intention behind the amendment. Therefore, with respect, I urge hon. Members to reconsider it.
I will not deal in detail with amendment 847, because I do not think the hon. and learned Gentleman seeks to press it. Although I oppose it, I will move on without argument to amendments 848 and 858. We have discussed similar amendments on extraterritoriality in relation to other powers in the Bill. I pray in aid the arguments I used earlier. The provisions in the Bill allow a notice to be given in the most appropriate manner, taking into account the preferences of each company, which is an example of the adaptability of the legislation to the real world.
Amendment 848 is unnecessary because the clause is about not the acquisition but the development and maintenance of a technical capability. Conflict of law issues are much more likely to arise in respect of giving effect to a warrant, and we already have protection in the Bill for such cases. Admirable though the amendment may seem, it is therefore unnecessary.
Amendment 849 is unnecessary because it duplicates provisions in clauses 218, 216 and 217. I have discussed clause 218(3), which stipulates that the Secretary of State must consider a wide range of matters before giving a notice. That detailed assessment already speaks to the issues raised by the amendment. The Secretary of State has to be satisfied that the conduct is proportionate, justified, necessary and practicable.
Joanna Cherry
I am sorry to interrupt the Solicitor General’s flow, but I sense he is coming to the end of his argument. Will he clarify something? Am I right in understanding that there is nothing in the clause to prevent someone who is intent on evading surveillance from using open-source encryption software that is personally generated by the user? That would mean they could encrypt files and email communications themselves, independent of any provider, and therefore remain untouched by this legislation.
The Solicitor General
That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.
Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.
Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.
The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.
Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.
I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I have only three issues to address. The first, which requires more attention from the Solicitor General—I say so with no disrespect—is the question of the extent of the prohibition on disclosure and, essentially, access to the courts or appropriate tribunals. On the face of it, clause 218(8) is a prohibition on disclosure, save with the permission of the Secretary of State. With respect to Committee members, I do not think that clause 220 provides the answer, because that deals with the consultation exercise where a notice is being reviewed.
I have no doubt that, if the Secretary of State exercised her power under clause 218(8) to prevent access to the courts, it would run straight into an article 6 access to courts argument that would succeed on judicial review. I had assumed that one could read into the clause by implication that permission would not be refused in a bona fide and proper case where access to court—or the relevant tribunal, which may be a better way of putting it—was an issue. If that were made clear for the record or by some redrafting of the clause, it would help. As I said, I think that, in practice, any court in this jurisdiction would strike down pretty quickly a Secretary of State who sought to prevent access to the court.
The Solicitor General
I think that the hon. and learned Gentleman is right about that. On that basis, I will have another look at clause 218(8), to get it absolutely right. I reassure him that it is not the Government’s intention to preclude access to the court.
Keir Starmer
I am reassured. I am sure that that would not be the case, but it might be sensible to clarify that rather than relying on clause 220, because I am not sure that that is the right way to do it. However, I will say no more about that.
I was going to press for votes on amendments 846 and 849, but I have listened carefully to what the Solicitor General said and to what the Minister said when he rose to make some observations earlier. They are by far the two most important amendments. Amendment 846 deals with encryption. I think I heard the Solicitor General say that he will look again at the wording of clause 218(4) to see whether it is possible to make clear what is clear in the code of practice, namely, that an obligation placed on a CSP to remove encryption relates only to electronic protections that the company itself has applied to intercepted communications and secondary data. That is clearly the position that the Government adopt, because it is now set out in the code. I think that the Solicitor General might accept that, at the moment, clause 218(4) does not quite achieve that objective. On the basis that he is prepared at least to look at that again, I will not press amendment 846.
Joanna Cherry
The Scottish National party is not happy with this clause without amendment. I was going to press it to a vote, but having heard what the Solicitor General said about the clause, and pending his writing to me, I am willing not to press it. I just lay down a marker in that respect.
Question put and agreed to.
Clause 217 accordingly ordered to stand part of the Bill.
Clause 218
Further provision about notices under section 216 or 217
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
The SNP takes the same position as it did on the previous clause.
Question put and agreed to.
Clause 218 accordingly ordered to stand part of the Bill.
Clause 219
Variation and revocation of notices
Mr Hayes
I beg to move amendment 734, in clause 219, page 170, line 8, at end insert
“(and in the application of section 218(3) and (4) in relation to varying a relevant notice, references to the notice are to be read as references to the notice as varied).”
This is a technical amendment. Ms Dorries, I should have welcomed you to the Chair earlier, but I do so now. The amendment is uncontentious and makes a drafting correction to clause 219. On that basis, it should not cause the Committee any undue concern, and I move it in that spirit.
Amendment 734 agreed to.
Clause 219, as amended, ordered to stand part of the Bill.
Clause 220
Review by the Secretary of State
Keir Starmer
I beg to move amendment 851, in clause 220, page 170, line 31, leave out subsection (6) and insert—
‘(6) The Board must consider the technical requirements and the consequences, for the person who has made the reference and for others likely to be affected, of the notice so far as referred.”
This amendment would require the Technical Advisory Board to look at more than just an implementation of cost measure and instead examine the full costs of the notice.
Our discussions have already strayed on to clause 220. This short amendment is reasonably clear. Subsection (6) makes it clear that the technical advisory board, referred to in subsection (5)(a),
“must consider the technical requirements and the financial consequences, for the person who has made the reference, of the notice so far as referred.”
That is where the person served with the notice has referred the notice back to the Secretary of State, which then triggers a consultation exercise. The board must be consulted; subsection (6) sets out what the board must consider. The amendment is fairly self-explanatory; it would serve the limited purpose of requiring the technical advisory board to look at more than just the implementation of cost measure, and instead examine the full costs of the notice.
Mr Hayes
As the hon. and learned Gentleman said, the amendment would broaden the scope of the technical advisory board by requiring it to consider other matters as part of any review of the obligations imposed by the Secretary of State in a notice. Under the amendment, the board would be required to consider the consequences for others likely to be affected by the obligations imposed by a notice. That is understandable—I can see why the hon. and learned Gentleman tabled the amendment—but unnecessary.
The technical advisory board is essentially a committee of experts. It has a very specific role to play in advising the Secretary of State on cost and technical matters. That role is reflected in its membership: a group of experts drawn from communications service providers and from those entitled to apply for warrants and authorisations under the Bill. Such people are well placed to consider the technical requirements and the financial consequences. If they consider it appropriate, they may look beyond cost and technical feasibility, but those matters, rightly, are the board’s central purpose and are at the core of its work. The board is also required to consider evidence or representations made by communications service providers and must report its conclusions to them and to the Secretary of State.
In my view, responsibility for considering the broader effects of the notice on the communications service provider to whom it has been given should sit with the Investigatory Powers Commissioner. While it is absolutely right that the board considers both the technical aspects and the cost, the broader matters that the hon. and learned Gentleman is rightly concerned about should fall within the scope of the commissioner, as they do in the Bill. As part of any review of the obligations set out in the notice, the commissioner must report on the proportionality of those obligations; that will include an assessment of the consequences of the notice, both on the persons seeking the review and on anyone else affected—which is essentially the argument the hon. and learned Gentleman made for the amendment.
Furthermore, the clause requires the commissioner to seek out the views of the person who has received the notice, who will have the opportunity to raise any concerns about the effect of the notice with the commissioner for consideration; the commissioner must report his or her conclusions to that person and to the Secretary of State. Essentially, combining the role and responsibilities of the board with the role and responsibilities of the commissioner means that each of them will provide a function central to the hon. and learned Gentleman’s concerns, so the amendment is unnecessary. I should add that the commissioner is properly and well placed to consider the proportionality of the matter as a whole, after careful assessment. The amendment’s wording would introduce duplication and, frankly, a degree of ambiguity about the respective roles of the board and the commissioner and about what each of them is considering. With that reassurance, I hope the hon. and learned Gentleman will withdraw the amendment.
Keir Starmer
The Minister says that the Bill places no inhibition on the wider technical consequences looked at by the board, and that other consequences rightly come under the remit of the commissioner. I am grateful for that clarification; I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment proposed: 852, in clause 220, page 171, leave out lines 1 and 2 and insert—
“(9) The Secretary of State may, after considering the conclusions of the Board and the Commissioner, and with approval of a Judicial Commissioner—”.—(Keir Starmer.)
This amendment would require judicial authorisation for these clauses and bring them in line with other parts of the bill.
Question put, That the amendment be made.
The Chair
With this it will be convenient to consider new clause 23—Review of the Operation of this Act—
“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of six months beginning with the end of the initial period.
(2) In subsection (1) “the initial period” is the period of four years and six months beginning with the day on which this Act is passed.
(3) Subsequent reports will be prepared every five years after the first report in subsection (1).
(4) Any report prepared by the Independent Reviewer must be laid before Parliament by the Secretary of State as soon as the Secretary of State is satisfied it will not prejudice any criminal proceedings.
(5) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), both his expenses and also such allowances as the Secretary of State determines.”
I inform the Committee that I consider clause 222 and new clause 23 to be alternatives. If the Committee decides that clause 222 should stand part of the Bill, I will not put the Question on new clause 23. If the Committee decides that clause 222 should not stand part, when the Committee comes to decisions on new clauses, I will put the necessary Questions on new clause 23 without debate.
Joanna Cherry
I take it, Ms Dorries, that I am entitled to make a submission as to why the clause should not stand part of the Bill, and should instead be replaced with new clause 23.
Joanna Cherry
In short, it is welcome that following the recommendation of the Joint Committee on the draft Bill, there is now some sort of sunset provision in the Bill. Those who sat on the Joint Committee or read its report will recall that various people who gave evidence made a strong case for a sunset provision in the legislation. The Information Commissioner summarised that case by saying:
“The draft Bill is far reaching and has the power to affect the lives of all citizens to differing degrees. For these reasons, the bill should include a sunset clause or other provisions requiring effective post legislative scrutiny. This would ensure that measures of this magnitude remain necessary, are targeted on the right areas and are effective in practice. To fail to make this provision risks undermining public trust and confidence. It will also enable the legislation to be considered in the light of the latest jurisprudence from the”
Court of Justice of the European Union and the European Court of Human Rights. Various variations on the Information Commissioner’s proposal were put to the Joint Committee by other witnesses, including medConfidential, Dr Paul Bernal, the right hon. Member for Haltemprice and Howden (Mr Davis), Privacy International and the Interception of Communications Commissioner’s Office.
The Home Secretary expressed reservations about having a sunset provision, but it is good to see that there is now some such provision in the Bill. What is missing from it, however, is an independent element.
Keir Starmer
I shall speak briefly in support of new clause 23. The essential difference between this new clause and clause 222 is, of course, that the new clause would provide for a review within an initial period of five years and for subsequent five-yearly reviews, and for the reviews to be carried out by the independent reviewer, which we submit is more appropriate.
I understand why this new clause has been tabled, but it puts me in a bit of a dilemma. Is a review by the Secretary of State a good thing? Yes. I would therefore support clause 222 if I could not get anything better. I would not want to vote against the Secretary of State reviewing the Act if I lost on new clause 23, because it is sensible to have a Secretary of State review it. In other words, clause 222 is good, but new clause 23 is better; that is the way I would put it. I am in a dilemma, because if I vote against clause 222, I am voting against a good clause that I would naturally support in principle, but if the vote on new clause 23 was not carried—and having looked at the voting record so far, I am not confident that it would be—
The Chair
Order. Mr Starmer, would it be helpful to say that you could table amendments to clause 222 on Report, if you wished to?
Keir Starmer
Yes, that is probably the way out of my dilemma, but really this is more for the record. I will not vote against clause 222, but that is not because I think it is preferable to new clause 23; I would like to have the new clause as well. We will reflect on how we deal with that apparent dilemma.
Mr Hayes
That was the most heartwarming qualified advocacy of an amendment that I have ever heard in Committee; I was quite touched by it. I could not help thinking that there must be countless Tory voters in Holborn and St Pancras who feel about the hon. and learned Gentleman as he feels about this clause. I know that he bathes in their generous acclamation on a daily basis. It was very decent of him to put his case in the way he did.
I will deal with the substance of the new clause and its purpose. The hon. and learned Gentleman is right that new clause 23 would replace the Government’s proposals for a review of the operation of the Act as set out in clause 222, and he is also right that the clause obliges the Secretary of State to report to Parliament on the operation of the Act within four to five years. He described the detail, and I will not tire Committee members by quoting it more specifically. The new clause proposes instead the appointment of an independent reviewer to report on the operation of the Act every five years, beginning five years after the Act is passed.
Where we find common cause is in thinking that both pre-legislative and post-legislative scrutiny are essential. One could make that argument for most legislation, but particularly for legislation in this field, for two reasons: first, its import; and, secondly, the changing circumstances that will doubtless apply, as regards both technology, which the Bill deals with expansively, and the threat we face. All we know about the changes that have taken place over recent years suggests that those changes will continue and may grow in character and speed.
I fully understand why the hon. and learned Gentleman wants the whole House to take a close look at these matters over time. Indeed, the Home Secretary, in her evidence to the Joint Committee on the draft Bill, said:
“As technology advances, it may be necessary to revisit the powers, the legislative framework and the safeguards that are available”.
That is eminently sensible, and something that the Government wholeheartedly support.
As I said, clause 222 provides for judicial review. The hon. and learned Gentleman did not mention it, but he will know that the Joint Committee looked at that, and said that
“the appropriate vehicle to do this would be a specially constituted joint committee of the two Houses. This work should begin within six months of the end of the fifth year after which the Bill is enacted. Although the appointment of such a committee would be a matter for the two Houses, a provision in the Bill would provide a clear mandate and guarantee the timescale for this review.”
The Joint Committee gave that quite careful consideration. The members of this Committee who were also members of that one will recall that they did so because of the shared determination, which the hon. and learned Gentleman has articulated well, that we should not assume that as time goes on we will not need to be reasonably flexible about the application of the powers.
The Solicitor General made a point about providing legislation that looks as far into the future as possible. Certainly, the purpose of the Bill is to not only draw existing legislation into a single place but, as far as one reasonably can, prepare for the future. However, in doing so, it is important to be mindful of what the Joint Committee said, reflecting the Home Secretary’s evidence.
The hon. and learned Member for Holborn and St Pancras will know that the Joint Committee went on to recognise that the Government cannot, in statute, require Parliament to appoint a post-legislative scrutiny Committee. Let me explain that a little more. Ms Dorries, as you will understand with your experience in the House, it is not for the Government to say what Select Committees might look at over time. It certainly would not be for the Government to dictate to the Intelligence and Security Committee, for example, how it should regard or review the legislation within its scope or purview. It would be a dangerous precedent to set to say that any particular Select Committee should, statutorily, consider matters at a particular point in time, or in a particular way.
The clause says that the report should take account of any other report on the operation of the Act, mindful of what I have just described—that is, that the ISC, other Select Committees, or Committees of both Houses could bring evidence to bear that would inform that review. In essence, it would be a matter for Parliament to decide precisely what was looked at and when, within the confines determined in the Bill, but it is essential that the Secretary of State is missioned to report on the Bill’s implementation in the timetable described. That is something that legislation can quite properly do; it both gives all kinds of powers to the Secretary of State, and confirms those powers.
While I can see why the hon. and learned Gentleman supports the new clause, it is unnecessary, not because of the intent, but because of the detail. Essentially, we are offering two different models in order to achieve the same end. A parliamentary Committee would be just as independent as a separately appointed reviewer—and it would avoid the argument, which I know Opposition Members would be quick to have, about who should be responsible for appointing the reviewer.
Keir Starmer
This may be blindingly obvious, and any Secretary of State, including the current one, would almost certainly take this into account anyway, but could we amend subsection (3) to make it absolutely clear that the Secretary of State must take into account reports of the independent reviewer in addition to those of Select Committees? While that is not precisely what the new clause would achieve, and while I am absolutely sure that any Secretary of State would do that in any event, it would weave in an element of the new clause’s intention. It would not presuppose that there would necessarily be a report, but if there were one, it would be taken into account.
Mr Hayes
I am not unsympathetic to that suggestion, but let me qualify that slightly. There is an argument to say that we would want another reviewer involved in the process, because what we want is as much empiricism as possible. We have neither the time nor the patience for a long debate about the philosophical character of empiricism, and I am not an empiricist, philosophically, but in terms of legislation, it matters. There is an argument for introducing still more independence into the process.
The hon. and learned Gentleman is right to say that, of course, the Secretary of State would want to take into account the views of all those in positions of authority who have taken a view on the Bill and its implementation and effects in her or his report. I certainly would not want to exclude from that consideration any of the authoritative reports published on the Bill. I think that probably meets the hon. and learned Gentleman halfway, and perhaps a little more than halfway.
Any parliamentary review would take evidence from a range of witnesses. It is, again, almost inconceivable that the independent reviewer would not be a key witness, as our current independent reviewer was to the Joint Committee and other Committees of the House. It would—again, as the Joint Committee did—be likely to appoint technical advisers, who would inform the process and work in concert with the ISC. While the Government support a post-legislative review of the Bill, that review should be conducted by Parliament—by legislators drawing on external expertise and evidence, as the Joint Committee recommended. I therefore invite hon. Members not to press the new clause to a vote.
Joanna Cherry
I will not press new clause 23 to a vote.
Question put and agreed to.
Clause 222 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Simon Kirby.)
Investigatory Powers Bill (Sixteenth sitting)
Tuesday 3rd May 2016
(8 years, 9 months ago)
Public Bill CommitteesRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 May 2016 - (3 May 2016)
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 2 / Noes: 10 - Question accordingly negatived.
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert—
‘(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”
This amendment clarifies the definition of communications data, limiting requirements on organisations to be providing data about the services that they supply.
It is a pleasure to welcome you back to the Chair, Mr Owen. This is an amendment to the interpretation clause dealing with telecommunications definitions, in particular subsection (5), which deals with the definition of communications data. The amendment would replace subsection (5)(a)(i) with the purpose of clarifying that the definition of communications data applies to the providers of the relevant telecommunications services, rather than allowing an organisation to be required to provide data about services it does not provide. Without the amendment, the definition of communications data is flawed because it does not tie the data to the provider of the telecommunications service and therefore seems set to encompass third-party data, which I know the Home Office denies is the intent.
The amendment would make two small changes. First, it specifies that the telecommunications service has to be provided by that telecommunications operator—in other words, it avoids pulling in third-party data. Secondly, it specifies that the data relate to the particular service provided and not to a different one. I will be interested to hear what the Solicitor General has to say about this amendment, which seeks to clarify and tighten up the clause.
The Solicitor General (Robert Buckland)
It is good to see you back in your place, Mr Owen. I look forward to a fruitful session.
I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in particular third-party data. I do not want to rehearse the arguments about why we consider the code of practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message loud and clear, so we are considering whether we could do more to make the commitment clear. I hope that that gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful 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 prevent a communications service provider from being required to retain those data. I am not sure that the amendment achieves that desired outcome. It would remove third-party data from one element but not from 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 correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle of communications data is clear; changing the definition so that the classification of data changes depending on which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not intend.
My first argument is that the clause is not the right place to prevent public authorities from obtaining third-party data or to prevent a CSP from being required to retain them. Clause 53(5)(c) makes it clear that a communications data authorisation can provide for the obtaining of third-party data where that is reasonably practicable for the communications service provider. That maintains the existing provision under the Regulation of Investigatory Powers Act 2000. Where a CSP holds communications data, whether in relation to its services or those provided by a third party for its business purposes, or where it is able to obtain them, they should be available to the public authorities for the statutory purposes in the Bill. We should not put them out of the reach of law enforcement agencies, based solely upon which company holds the information.
I suspect that the hon. and learned Lady’s intent may be to stop a service provider being forced to comply with an unreasonable requirement relating to third-party data—[Interruption.] I am grateful to her for indicating her assent. I assure her and the Committee that, in my view, the Bill already does that. A provider is required to comply with a request for comms data, including third-party data, only where reasonably practicable for them to do so. There is no need to impose a further restriction on that basis.
I recognise the sensitivities of third-party data, but I am afraid that a blanket restriction on its acquisition is not the way forward. We consider that the Bill and the code of practice strike the right balance. On the basis of my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 223 ordered to stand part of the Bill.
Clause 224 ordered to stand part of the Bill.
Clause 225
General definitions
Joanna Cherry
I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—
‘(a) an advocate,
(b) a barrister,
(c) a solicitor.’
This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.
I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.
The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.
The Solicitor General
When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.
I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.
Joanna Cherry
I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies
“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?
The Solicitor General
That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.
Joanna Cherry
I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.
The Solicitor General
The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 225 ordered to stand part of the Bill.
Clauses 226 to 231 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 232 ordered to stand part of the Bill.
Schedule 10
Minor and consequential provision
The Minister for Security (Mr John Hayes)
I beg to move amendment 634, in schedule 10, page 235, line 33, leave out paragraph 46.
This amendment omits the amendments of paragraph 19ZD of Schedule 3 to the Police Reform Act 2002. Paragraph 19ZD is to be repealed by the Policing and Crime Bill.
Mr Hayes
This is a technical amendment that essentially removes the duplication of a consequential provision in another piece of legislation—the Policing and Crime Bill—that makes what is in this Bill unnecessary. It is entirely uncontentious and I will not tire the Committee by speaking for any longer.
Amendment 634 agreed to.
Schedule 10, as amended, agreed to.
Clause 233
Commencement, extent and short title
The Chair
With this it will be convenient to consider:
New clause 24—Duration of this Act—
“(1) This Act expires at the end of one year beginning with the day on which it is passed (but this is subject to subsection (2)).
(2) Her Majesty may by Order in Council provide that, instead of expiring at the time it would otherwise expire, this Act shall expire at the end of a period of not more than one year from that time.
(3) Such an Order may not provide for the continuation of this Act beyond the end of the year 2022.
(4) No recommendation may be made to Her Majesty in Council to make an Order under subsection (2) unless a draft of the Order has been laid before, and approved by a resolution of, each House of Parliament.”
Joanna Cherry
New clause 24 is a true sunset clause, modelled on clause 1 of the Armed Forces Bill currently before Parliament. We had a spirited debate before the break about potential replacements for clause 222, which is a clause of review. The new clause is another alternative—a sunset clause in the true meaning of the term, which would provide for the Act to expire at the end of a certain period, subject to certain provisos. I do not intend to push the new clause further at this point, given the position we took in relation to new clause 23.
Mr Hayes
Clearly, the sunset clause that the new clause proposes is being debated—briefly, I hope—as we approach the sunset of our consideration of this important Bill. A sunset provision is often a feature of emergency legislation and has indeed been appeared in legislation of the kind that we are now debating. It is usually because the legislation has been introduced to meet some particular short-term challenge and Parliament is given limited time in which to consider the legislation responding to that challenge. That is not the case in respect of this Bill, which has had extensive prelegislative scrutiny, both before its draft incarnation and since. It has now had considerable scrutiny by the Committee, and will no doubt continue to be scrutinised as it progresses through its further stages. I am therefore not sure a sunset clause is appropriate.
The hon. and learned Lady is well aware of the three independent reviews that preceded the publication of the Bill, and of the three Committees of this House that have considered the Bill in considerable detail since then. One of those—the Joint Committee—considered at length a sunset clause and a review of the legislation. We debated that a few minutes ago under an earlier group of amendments. As I said at that time, rather than proposing a sunset clause, the Joint Committee suggested a review of the legislation. I understand that suggestion, given the dynamism of the circumstances that the Bill is designed to address—the need to deal with changing technology and so on and so forth. Indeed, the Government, taking full account of the sagacity of the Joint Committee, have built that into the Bill in clause 222, which we have debated at some length.
The complexities of this legislation are acknowledged and understood. I can see why the hon. and learned Lady makes a case for this sort of consideration. In David Anderson’s report on these matters, which I will not quote at immense length unless the members of the Committee wish me to do so, he makes clear that although it is important to consider the effects of the Bill, it is not necessary to accelerate that process in the way that the new clause would. He also makes clear, as others have, that it is vital that the legislation stands the test of time and is fit for the future. I am therefore uncomfortable with introducing specific deadlines of the kind proposed in the new clause.
The hon. and learned Lady has repeatedly and rightly argued that many of the provisions of the Bill require considerable investment. The obligations such as those in respect to data retention require a lot of thought, a good deal of planning and an investment of time and effort from communications service providers and others. Putting that infrastructure into place is a testing business; it is the right thing to do, but it is testing none the less—a point made by the hon. Member for City of Chester and others during the course of the Committee’s consideration. Then to say that we are going to look at all of that again in 12 months’ time sends out a very unhelpful signal to those we are missioning to do that work. We have gone about this business thoroughly. We have discussed this at length with communications services providers throughout the process and time and again they have said that they want certainty; they want a reasonable degree of surety about what is expected of them. I think they would be reticent about investing in the way that they need to if they felt that this all might change in 12 months’ time.
The Home Secretary put the case as well as it can be put when she told the Joint Committee that “advances in technology” are not
“going to move according to sunset clauses established by Parliament.”
Although it is important that these matters are reviewed—as I said on clause 222, we have set into motion the means by which they will be reviewed—I do not think a sunset clause of the type proposed is the right way forward. On that basis, given the assurances that I have offered, I hope the hon. and learned Member for Edinburgh South West will see fit not to press the new clause.
Joanna Cherry
Yes, I confirm I will not press the new clause.
Question put and agreed to.
Clause 233 accordingly ordered to stand part of the Bill.
New Clause 12
Warrants: notification by Judicial Commissioner
“(1) Upon completion of conduct authorised by a warrant under this Part, or the cancellation of a warrant issued under this Part, a Judicial Commissioner must notify the affected party, in writing, of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place.
(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.
(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.
(4) A Judicial Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (3).”.—(Joanna Cherry.)
This amendment would introduce a requirement that all equipment interference produces a verifiable audit trail. This will be particularly vital to the success and legitimacy of prosecutions. It is recommended that further provision for the independent verification of audit trails is included in Part 8 (Oversight Arrangements).
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 13—Audit trail of equipment interference—
“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”.
New clause 18—Notification by Intelligence and Surveillance Commissioner—
“(1) The Intelligence and Surveillance Commissioner is to notify the subject or subjects of investigative or surveillance conduct relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Intelligence and Surveillance Commissioner must only notify subjects of surveillance under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within 30 days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Intelligence and Surveillance Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Intelligence and Surveillance Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security investigation relating to the subject of surveillance.
(6) The Intelligence and Surveillance Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”.
Joanna Cherry
The new clause relates to part 5 of the Bill, which deals with equipment interference—more colloquially known as “hacking”. The effect of the new clause would be to require that the targets of hacking, or the targets of equipment interference, are notified after the fact, as long as that does not compromise any ongoing investigation. The effect of the new clause would mean that the judicial commissioners were under a mandatory statutory duty to notify those subject to surveillance once a particular operation or investigation had ended. At present, unlawful surveillance only comes to light as the result of a chance leak, whistleblowing or public interest litigation of the sort brought by Liberty and other non-governmental organisations and concerned citizens. That is deeply unsatisfactory and is also potentially contrary to our obligations under the European convention on human rights. If a person’s article 8 and other Human Rights Act-protected rights have been infringed, in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach. This was stated by the Court in Strasbourg in Klass v. Federal Republic of Germany back in 1978 and reiterated more recently in Weber and Saravia v. Germany in 2006. In both cases, the European Court of Human Rights reiterated
“that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively.”
More recently, in the case of Zakharov v. Russia in December 2015, the Grand Chamber of the European Court of Human Rights found that judicial remedies for those subjected to interception in Russia were generally ineffective, particularly in light of the total absence of any notification requirement with regard to the interception subject, which meant that there was no meaningful ability to mount retrospective challenges to surveillance measures, and therefore such provision as there was in Russia was ineffective. Do we want to be passing legislation that is as ineffective in the protection of our constituents’ rights as that in Russia?
The Bill, as it stands, provides a new power for the Investigatory Powers Commissioner to inform someone subjected to a surveillance error by a public authority, but not by a communications service provider, if the commissioner is made aware of it and considers it sufficiently serious, in the public interest, not prejudicial to national security, and so on. We debated that at some length last week. For an error to be serious, it must have caused significant prejudice or harm to the person concerned.
As we also discussed last week, the Bill states that a breach of the Human Rights Act is not, in itself, sufficient for an error to be considered serious, which is a serious shortcoming of the Bill. When notifying someone of an error, before making a decision the Investigatory Powers Commissioner must ask the public authority responsible for the error to make submissions to the commissioner about the matter concerned. That is a narrow, arbitrary and highly discretionary power that will relate only to the most serious errors that judicial commissioners discover during their very limited audit of the use of surveillance powers, which highlights the conflicted position in which judicial commissioners may find themselves, and it does not discharge the Government’s human rights obligations to provide post-notification by default unless they can justify continued secrecy. That is very significant because the security repercussions of hacking into a device or network create an even greater imperative for post-notification, as we discussed at length when we debated amendments and clauses under part 5.
When we debated part 5, it was noted by me and others that a hack, once it has been carried out, may compromise the security of the hacked device, leaving it open to further exploitation by criminals or even other Governments. It is the equivalent of the state breaking into a house, conducting a search and then leaving without locking the doors and without the resident realising that all that has happened. It is one thing for the state to hack into a device where it is strictly necessary and proportionate, but it is quite another for the state to leave the scene, leaving individuals vulnerable to criminal attacks with no way of protecting themselves. If the Government wish their security and law enforcement agencies to have this significant power, they must accept the concomitant responsibility. The purpose of new clause 12, put briefly, is to put the judicial commissioners under a mandatory statutory duty to notify persons after the fact, once an operation or investigation has ended, unless there are very good reasons not to do so.
The Solicitor General
I have listened with great care to the arguments of the hon. and learned Lady. I absolutely agree that, where a serious error has occurred in the use of investigatory powers, the commissioner should be able to inform those affected. We have clause 198(1) to deal with that. However, I do not agree with the principle that as a matter of course, everyone or anyone subject to the use of a lawful investigatory power should be notified of the use of those powers, even with the caveat “unless it would damage an ongoing serious crime or national security investigation”. Such a principle would mean that we could not exclude the possibility of having to notify suspected criminals and terrorists that powers had been used against them, just because a specific ongoing investigation had stalled or indeed ended with evidence of wrongdoing, but without sufficient evidence to meet the prosecution test.
As hon. Members will know, suspected criminals and terrorists will often appear on the radar of the police and security services at different times and in different contexts. Clearly, it would not be at all appropriate to inform them that investigatory powers had been used in one case, as that could prompt them to change how they behave or communicate and hamper subsequent investigation.
National security is particularly important in relation to this matter, because the amendment would require the commissioner to make the subject of interest aware of the conduct that had taken place. That would not only run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies; it would essentially require the techniques that they use in specific cases to be made public. That cannot be in the public interest. It would assist terrorists and criminals in their operations, which I am sure cannot be the intention behind the amendment.
Furthermore, the commissioner can delay notification only on the basis of serious crime rather than of crime generally, meaning that the amendment would require the commissioner to inform suspects in active criminal investigations that their communications data had been acquired. One example is an investigation into stalking. It may well not meet the serious crime threshold, but as we have discussed in another context, communications data could be essential, because they could show contact between two parties. My worry about the amendment is that it would require the stalker to be informed that his communications data had been requested, which surely cannot be the intent.
Joanna Cherry
Does the Solicitor General agree that new clause 12(3) deals with the very problem that he has just identified? It says:
“A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.”
The Solicitor General
I am afraid that it does not, because it uses the words “serious crime”. I have given an example that might not be seen as a serious crime, although as we all know, stalking is absolutely no joke to the victims and can lead to extremely serious consequences for them. I know that the hon. and learned Lady agrees with me about all that.
Beyond the principled objections to the amendment, there are numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. The commissioner would have to require the relevant telecommunications operator to provide them with a list of all relevant customers, and that operator would have to inform the commissioner every time a new customer joined the service. I worry that it would be pretty easy for criminals to use that process to identify services that they could use to avoid detection, and that unreasonable burdens would be put on all the public authorities covered by the Bill.
Joanna Cherry
By way of probing, if we were to delete the word “serious”, so that the subsection read, “notification may defeat the purposes of an ongoing criminal investigation or a national security investigation,” would that deal with the Solicitor General’s concerns?
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she is seeking a reasonable compromise, but I worry that her proposed approach is, on that basis, unnecessary. We already have checks and balances in the framework of the Bill that allow for serious error to be properly identified and dealt with, and for those affected to be notified. As I was saying, I worry that we would end up placing unreasonable burdens on public authorities by requiring them constantly to make a case to the commissioner about whether what they were doing would hamper national security or crime investigations if suspects were told that investigatory powers were being used against them. It would be far better for the police to spend their time and money on getting on with the work of investigating criminals than on determining whether individuals should be informed about what we should not forget is perfectly lawful investigative activity, with the caveat I mentioned about serious error.
Furthermore, in the context of bulk warrants under parts 6 and 7 of the Bill, the public authority or commissioner would need to examine all the data collected under the warrant to identify those individuals whose data had been collected. That would be impracticable and would actually lead to greater intrusions into privacy, because, as we know, bulk data are not examined to that degree unless there is a specific purpose and a properly framed approach. I am sure that cannot be the intention of the amendment. These proposed new clauses are at best unnecessary and at worst frankly unhelpful, and risk undermining the work of our law enforcement and security and intelligence agencies.
On new clause 13 and the audit trail point, the draft code of practice, at paragraph 8.5, requires that
“When information obtained from equipment interference is used evidentially, the equipment interference agency should be able to demonstrate how the evidence has been recovered, showing each process through which the evidence was obtained.”
There will, however, be circumstances when equipment interference is used on an intelligence-only basis—that is, a non-evidential basis. Given those points, and given that it is in the interests of law enforcement and the intelligence agencies to ensure that where equipment interference is used to support a criminal investigation, that is done accordance with evidential standards, new clause 13 is, with respect, not necessary.
If that new clause is in fact about the enhancement of oversight, we have made it clear that while the powers of the new commissioner are being significantly increased, their resources will be greatly increased, which means that they will be able to audit, inspect and review equipment interference agencies as they see fit. In addition, the draft code of practice for equipment interference will require the relevant agencies to keep extensive records to support and enable oversight. There has been no suggestion from the current oversight commissioners in respect of property interference warrantry that a statutory requirement for an audit trail is necessary.
The hon. and learned Lady properly made reference to recent ECHR authorities, most notably Zakharov, a case that I have looked at in the context of these debates. We have to be careful about Zakharov, because it deals with the targeted interception regime—a particular aspect of the debate, as she knows—rather than the bulk regime, in relation to which it is sometimes prayed in aid. I give that caveat in the spirit of fairness, because of course the Zakharov case contained reference to Kennedy v. United Kingdom, a 2010 case in which the UK was found to be in compliance with article 8. In particular, the role of the Investigatory Powers Tribunal was seen as an important part of the checks-and-balances mechanism that allowed the Court to come to the conclusion that the article 8 requirements were satisfied.
Joanna Cherry
I would like to put my new clauses to the vote.
Question put, That the clause be read a Second time.
Joanna Cherry
I beg to move, That the clause be read a Second time.
The new clause relates to part 4 of the Bill, in particular clause 78, and to the retention of communications data. It would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data, which I believe would be in accordance with policy statements made by the Home Office. I am indebted to William Waites, Duncan Campbell and Adrian Kennard for drawing our attention to the need for this new clause and for assisting in its drafting. I can do no better than remind hon. Members of the statement submitted by Mr Waites on behalf of his organisation, HUBS CIC—document 53 in the written evidence submitted to the Committee—in which he explains:
“I am a founder and director of HUBS CIC, a Scottish Community Interest Company whose purpose is to facilitate broadband provision in rural and remote parts of the country outwith the reach of the large, well-known carriers.”
Hon. Members will be aware of this issue, which has been debated elsewhere in the House in this Session. The statement continues:
“HUBS’ members are small Internet Service Providers typically with tens to hundreds of individual end-user subscribers each. Together they provide the only available Internet service in large swathes of the West Highlands and the South of Scotland…HUBS does not provide service to end-users but instead makes bulk Internet services available to its members that would not otherwise be obtainable due to their small size.”
The members’ concern about clause 78
“is about how the data retention requirements…in particular, and the new obligations and duties on Telecommunications providers in general relate to service providers operating in the environment of HUBS’ membership…A typical member’s entire network infrastructure will cost on the order of tens or hundreds of thousands of pounds. It is optimised for lightweight, energy efficient operation. There are no data centres or indeed cabinets that have adequate physical security for safely storing the most intimate records of individuals’ on-line activities…Indeed it is recognised in general that keeping sensitive data secure is so important, that the best way to meet this obligation is simply to not record it.”
Therefore,
“Constructing facilities in each of these service providers to extract, record, securely store and make available any ‘Internet Connection Records’…would cost at least as much as their entire infrastructure…HUBS, though it is designed to enable the micro ISPs to benefit from economies of scale, cannot help here because it does not know the individual end users…Due regard should also be given to the social dynamics. If an ISP has a couple of dozen subscribers, two or three of which are actively involved in operating the network, data retention has a very different flavour.”
That is very often the position in rural and far-flung communities. It is like asking neighbour to spy on neighbour. I am sure that is not what the Government intend, but the new clause would spell that out. It would give providers of rural or community-access communication services and small service providers the reassurance they require in the Bill.
To put it shortly, the provisions in clause 78 are clearly designed for a very different environment from that which I have described, so those who operate within that environment are keen to have the Government’s assurance that they will be excepted from the requirements of the clause.
Mr Hayes
I think I can deal with this very briefly, because there are only two points to make. First, the amendment is flawed. The Department for Culture, Media and Sport tells us that the suggested designation is no longer used, if ever it was. That is a fundamental problem, but that is not a good enough argument alone. A better argument—my second point—is that restricting a retention notice to only large operators could result in large geographic gaps in capabilities or indicate to criminals that they should use only small providers. It is understandable that the hon. and learned Lady wants to defend the interests of small providers, but the provision could have unintended consequences of the sort I do not think she means.
Finally, the Joint Committee said:
“We believe that the definition of telecommunications service providers cannot explicitly rule out smaller providers without significantly compromising the data retention proposals as a whole.”
I appreciate the hon. and learned Lady’s intent, but I am not sure the form of the amendment is adequate or the arguments sufficient to be persuasive.
Joanna Cherry
I am not sure what the Minister is saying. Is he saying he could look at the amendment and make it better, or that the principle underlying it is not acceptable?
Mr Hayes
I am saying that it is not wise to designate providers based on their size. There will be niche market providers who may provide a particular function exclusively and there may be others providing in a particular area. Taking them out of the system would contradict the purpose of the legislation. Let me see if I can compromise. We have said throughout, and when we were debating an earlier group of amendments, that we understand that some smaller providers will face a significant challenge. I have also said that it is important to recognise that while large providers will have mechanisms to implement readily the changes we expect of them—
Joanna Cherry
Sorry, Mr Owen, I have lost my train of thought. The concern behind the amendment is that although certain assurances have been given, I have tried to explain that, without a guarantee that requirements will be placed on such providers, they may simply grind to a halt. Is there any way round that? That is the purpose of the amendment.
Mr Hayes
Let me try to make a more pithy intervention. Of course we understand that we need to support providers in meeting their obligations and we will take the steps necessary to do that. What I do not want to do is to exclude them in the Bill from the requirement because that would have consequences that the hon. and learned Lady does not intend.
Joanna Cherry
I am sure the last thing the denizens of the west or the south of Scotland want is some mass influx of terrorists to start using their small internet service providers. On the other hand, they do not want their hard-won and hard-fought-for internet access to be completely compromised by unreasonable requirements being put on it. They are concerned that, although assurances have been given, there is nothing in clause 17 to prevent the Government from putting what would be practically and financially crippling requirements on them. That is the purpose of the amendment.
Joanna Cherry
The arithmetic is inevitable, Mr Owen. I would like to think carefully about what the Minister has said, and go back to the organisations concerned and discuss it with them so I will withdraw the new clause for now.
Clause, by leave, withdrawn.
New Clause 25
Discharge of the powers, duties and functions: obligations
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the following—
(a) the public interest in protecting national security,
(b) the public interest in the prevention and detection of serious crime,
(c) the public interest in the protection of the privacy and the integrity of personal data,
(d) the public interest in the security and integrity of communications systems and networks,
(e) the principle of necessity,
(f) the principle of proportionality; and that no interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means,
(g) the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act, and
(h) the principle of notification and redress.”—(Keir Starmer.)
Brought up, and read the First time.
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move, That the clause be read a Second time.
The Chair
With this it will be convenient to discuss the following:
New clause 26—Discharge of the powers, duties and functions: protection of national security—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in protecting national security.”
New clause 27—Discharge of the powers, duties and functions: prevention and detection of serious crime—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the prevention and detection of serious crime.”
New clause 28—Discharge of the powers, duties and functions: protection of the privacy and integrity of personal data—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the protection of the privacy and the integrity of personal data.”
New clause 29—Discharge of the powers, duties and functions: security and integrity of communications systems and networks—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the security and integrity of communications systems and networks.”
New clause 30—Discharge of the powers, duties and functions: necessity—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of necessity.”
New clause 31—Discharge of the powers, duties and functions: proportionality—
“(1) The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of proportionality.
(2) No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”
New clause 32—Discharge of the powers, duties and functions: process, accountability and respect for the human rights—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act.”
New clause 33—Discharge of the powers, duties and functions: notification and redress—
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of notification and redress.”
Keir Starmer
I welcome you back to the Chair, Mr Owen, for what I anticipate will be our last debate in this Bill Committee as we take this clutch of new clauses together. I say it is our last debate, but in some ways new clause 25 concerns an issue that we have been debating throughout Committee, from the very opening sitting and through every sitting we have had since. The discussion has been to-ing and fro-ing over whether there ought to be more specific provision for weight to be given to privacy in each clause or each time a power is set out, or whether there ought to be some overriding clause.
The new clause is an overriding privacy clause that is consistent with the recommendation of the Intelligence and Security Committee. For the Labour party, it is an important provision, upon which we place considerable weight. In other words, somewhere in the Bill, there needs to be a recognition of the real rights and interests that are affected by the powers in the Bill. A clause is needed to ensure consistency through the Bill, as there are examples of different powers being dealt with in slightly different ways. That clause should also act as a reminder to decision makers about the key principles they are applying in pretty well all the decisions they make. Perhaps most importantly, the clause should reassure the public on the key principles that run through the Bill.
I will concentrate on new clause 25. Considerable thought has been given to how an overriding privacy clause could be put together in a way that has meaning—and therefore gives confidence to the public—but is not so detailed as to be impractical to operate as an overriding clause. The way that the new clause has been put together is that four important public interests are recognised in paragraphs (a) to (d).
First is the public interest in protecting national security. That runs through the Bill and is the starting point. The second is the national interest in preventing and detecting serious crime, which also runs through all the powers we have debated. Thirdly, there is the public interest in the protection of privacy and the integrity of personal data. Now and again that crops up in the Bill, although not consistently, but it is an overriding interest. Fourthly, there is the public interest in the security and integrity of communications systems and networks. Those are the four powerful public interests.
Paragraphs (e) to (h) deal with the principles to be applied, including the principle of necessity and the principle of proportionality. As we have heard, there are examples where, although the Minister and the Solicitor General understandably say, “Well, of course that would be the reference point for decision making,” they are not on the face of the Bill. The new clause would provide the reassurance that that was the framework against which decisions were made.
As far as the principle of proportionality is concerned, the second limb of paragraph (f) is taken directly from the code of practice. It has been thought through and put into the code of practice but, for reasons I have argued previously, ought to be on the face of the Bill. Paragraph (g) deals with
“the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act”,
and paragraph (h) deals with
“the principle of notification and redress.”
Now, they are principles and therefore are not fixed. The principle of accountability does not mean that everything must, necessarily, be transparent in the way it might be for other powers and duties in other Acts. The principle of notification does not mean there must always be notification. These are broad principles to be applied through the Act.
Whenever one tries to devise an overarching clause such as this, it is a careful exercise, or a judgment call, to try to decide what ought to be in and what ought not to be in. That is why the new clauses that follow are in the nature of a menu or suite of options. I am grateful to the Public Bill Office for giving me guidance on how to devise a number of clauses that would allow the Committee as a whole to look at each of these eight provisions and take a view on which ones ought to be included in an overarching privacy clause. My strong preference is not to get to new clause 26 and onwards, because I do not think that would be a particularly satisfactory way of dealing with an overarching privacy clause.
May I indicate, absolutely clearly and transparently, that I will listen carefully to what the Government say? In other words, I do not pretend for a moment that these new clauses could not be improved upon by different drafting. The issue we are probing is whether in principle there ought to be an overarching privacy clause, or an overarching set of public interests and principles, and if so, what broadly speaking would be included in them.
In that sense, new clause 25 can be properly described as a strongly probing clause. In other words, what we want to draw out are the views of the Committee on what an overarching clause ought to have in it; and if it is then necessary to have another joint exercise at drafting such a clause, then so be it.
Lucy Frazer (South East Cambridgeshire) (Con)
I rise to speak as someone who, as a lawyer, will have interpreted clauses such as this to advance a particular case, giving weight to a particular clause or using it to enhance a case or stress a particular fact. To take paragraphs (g) or (h), for example, when we have already discussed notification perhaps not being necessary, they might be construed as saying that notification was necessary in a particular clause where it has no meaning at all. Will the hon. and learned Gentleman acknowledge that, in inserting in an overarching clause, we might be hostages to fortune, by including intentions that we did not intend in specific provisions?
Keir Starmer
I am grateful for that intervention; there are really two answers. The first is that it has been the constant refrain from the Minister that most of these principles run through the Bill and that therefore they are unnecessary, although I would say it is necessary to flush them out in this form.
To give another example, when the Human Rights Act was being passed, there was a real concern about how freedom of expression would operate in practice, and the Government of the day were persuaded that there ought to be a clause that really indicated to the courts that special consideration or weight ought to be given to freedom of expression.
All that has meant in practice is that the courts, when dealing with freedom of expression, have looked carefully at that clause and given it due weight. It works pretty well in practice; it does not tie the hands of a court. However, it is a reminder to a court of what the most important public interests were in the view of those passing the legislation and what the principles running through the Bill were. More importantly, it was a reminder to decision makers. For every case that goes to court, there are however many hundred thousand decisions that are made by decision makers on the ground.
I have some experience in Northern Ireland of working with the police over there in implementing the Human Rights Act. Counter-intuitively in many ways, having statements of necessity and proportionality built into the decision-making process really helped them, because they were able to assess, probably better than most others, why they thought what they were doing was necessary, and able to articulate why they thought it was proportionate, and they actually came to very good decisions as a result of what might be seen as broad principles being built into their decision-making process.
Such a provision would assure the public as to how the Bill is intended to operate and what the strong currents going through it are. I genuinely think it would help decision makers in the fine decisions, when they are not quite sure where the balance lies, and it would be a reminder to the courts of the particular public interests and principles that Parliament intended to lay down as running through the Bill. The danger of such a clause is always that it will be overused by lawyers, but I do not think that is what has happened in practice with similar provisions.
Christian Matheson (City of Chester) (Lab)
I can assure you, Mr Owen, that I will not detain you, the Minister or the Committee for long, save to endorse what my hon. and learned Friend the Member for Holborn and St Pancras has said.
If this is to be our final debate in Committee, I pay tribute to the forensic diligence exercised by my hon. and learned Friend throughout our proceedings and as exemplified by new clause 25 that he has tabled. The crux of so much of what we have discussed in Committee has been balance—where the right balance is between the protection of individual privacy and the ability of our security, intelligence and law enforcement agencies to protect us as a nation. We all have different beliefs about where the balance lies and it is the job of the Committee and the House to establish that balance.
As my hon. and learned Friend has made clear, adding this overarching new clause would give the public a level of comfort—a level of trust, indeed—that we have the balance correct. The new clause would remind us, right at the start of the Bill, of the principles that we think underpin the legislation. That would provide the public with the comfort that they require and also imbue a sense of trust in the final Act that we hand over to the judiciary, the Home Secretary and the agencies that are charged with protecting us. Given the structure of the Bill and the repeated application of certain measures to different areas of activity, an overarching clause would provide a solid foundation to the rest of the Bill’s structure.
I commend my hon. and learned Friend for his work, and in particular for the new clause, because it helps to achieve the balance between protection of privacy and the protection and defence of the realm. I hope that it goes a long way towards winning the support of more sceptical members of the public who might be looking for reasons why they should not support the Bill; now, we can give them a reason why they should.
Joanna Cherry
I add my support and that of the Scottish National party to the new clause. I will tell hon. Members about an example of such a clause in Scottish legislation, which they might wish to look at. In doing so, I pay generous tribute to honourable Labour and Liberal Democratic parties which passed it. In coalition in the first Session of the Scottish Parliament, they passed a wonderful piece of legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. It was based on a report produced by a committee chaired by the late right hon. Bruce Millan, a former Secretary of State for Scotland and a very distinguished gentleman.
The 2003 Act sought thoroughly to modernise and codify the law of Scotland on mental health and, in particular, to take into account the human rights of those who have mental health problems. To do that, it set out in section 1 of the Act general principles that everyone discharging functions under the legislation must stand by. It is a piece of legislation that has very much stood the test of time and it has greatly enhanced the protection of the human rights of those in Scotland with mental health problems. It has also balanced that against the protection of the public in certain situations. The new clause does not take a legislative approach that is without precedent. If Members want to see how it might be done, they can find a similar example to new clause 25 in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
Mr Hayes
I have immense numbers of notes prepared for me by my officials. It will surprise neither them nor you, Mr Owen, that I intend to use very few of them.
It is fitting that our last debate in this Committee obliges us to consider the matter that lies at the heart of all that we have debated, which is the balance, to use the word used by the hon. Member for City of Chester, between personal interest and national interest—the balance between what I might describe as the defence of personal privacy and the underpinning of the common good. In those terms, communal wellbeing and individual fulfilment are for me inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us.
The hon. and learned Member for Holborn and St Pancras has tabled a measured new clause that attempts to strike that balance. He is right that it is in keeping with and in sympathy with my view, expressed in our very first sitting, that privacy is woven into the Bill throughout its provisions. He is also right that the overarching emphasis we place on privacy is important.
I will draw my remarks into sharp focus simply by saying this: the Government will introduce a clause along the lines proposed, and the new clauses before us will serve to inform that. My hon. and learned Friend the Member for South East Cambridgeshire is right that that has to be done with some caution, because, as both she and the shadow Minister said, we must avoid the pitfall of it being used as a way of frustrating the intent of the Bill in all kinds of other ways. The delicacy of its construction is a matter of appropriate concern.
Nevertheless, I am convinced that the new clause makes things clear. It is a helpful addition to our scrutiny, and I will finish where I started by saying that the balance that the hon. Member for City of Chester described is critical not only to his thinking, but to that of the Government and the shadow Minister. On that basis, I hope that the shadow Minister will withdraw the new clause with the assurance that it will be central to my consideration as we bring forward measures of a precisely similar kind.
Keir Starmer
I am grateful to the Minister for how he has put his final observations. It was in keeping with how all our debates have been conducted over our various sittings. I will not press any new clause to a vote. Pretty much every time that my wife and I take our children into a restaurant, no matter how many options are on the menu, they inevitably want something that is not on the menu. That is the position I find myself in now. I am happy that the suggested ingredients will be taken away and put together in a way that reflects the clause that the Minister, I am glad to say, has said he will introduce. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill, as amended, to the House.
Mr Hayes
In summary, Mr Owen, perhaps I could say a few words of thanks. I start by saying that anyone who has examined what we have done over the last several days and weeks would agree that the interpolations have been posed without contumely and the responses offered without bombast; our consideration has been motivated by well-informed interest and our determination has been tempered by reasonableness. So it should be, for this Bill is of the greatest significance. It is fundamental that we protect our national security and public safety—one might say there is nothing more fundamental—and that is what the Bill attempts to do.
I thank you, Mr Owen, and your co-Chairs, for gluing the Committee together with both sagacity and generosity. I thank the Clerks for grouping the amendments with professional skill; the Hansard Reporters for glowing, as they always do, with expertise; the Doorkeepers for guarding us and honing their locking and unlocking skills—largely due to the hon. and learned Member for Edinburgh South West, by the way; the officials at the Home Office for their gaping and gasping, I hope in admiration at the performance of those they advise, but possibly with incredulity, I cannot quite work out which; and the Ministers and other members of the Committee, for groping for the light in the dusk if not the darkness of their imperfections.
I particularly thank the Members on my side of the Committee: three immensely learned Ladies and three honourable Gentlemen learning at their knee; an almost perfect Parliamentary Private Secretary; a wonderful Whip; and my dear friend, the Solicitor General.
It would be both unwise and ungenerous not to pay tribute to the Opposition on the Committee who have been remarkable for their diligence, their reasonableness and their good humour, and for the way in which they have gone about the business of trying to perfect the Bill. I pay tribute to the hon. and learned Member for Holborn and St Pancras. I know he does not like my saying this—I have said it twice before and he criticised me both times—but it is the first time that he has done this, despite his long experience of other related things. He has done himself proud, if I might say so. The hon. and learned Member for Edinburgh South West, with just as much diligence, has held the Government to account thoroughly, but always, as I said, in the right spirit.
The Bill leaves Committee in a much better place as a result of the deliberations, our discourse and the scrutiny we have enjoyed. I thank all those I have mentioned and any whom I have forgotten to mention for their help in making that happen.
The Chair
Before other hon. Members make comments, I would inform them that when the Division bell goes, I will put the Question, whether a Member is in full flow or not, so that we do not have to come back after the vote, which will take up to three-quarters of an hour.
Keir Starmer
Thank you, Mr Owen. I have been handed a note which says, “Vote shortly”, and I think that is an instruction not to take long, but it would be remiss of me not to pay tribute and to say thank you to so many people who have made this process work as well as it has worked.
I start of course with yourself, Mr Owen, and your co-chair, who have taken us through the proceedings in an efficient and orderly way and allowed the points to be debated in the way they needed to be debated and drawn out where they needed to be drawn out. We are genuinely grateful to you for that.
I also thank the Public Bill Office. This has been a huge exercise and, on occasion, amendments that we thought we had lodged were not lodged where we thought they had been lodged and therefore, at 10 o’clock and 11 o’clock at night, the team upstairs was working to find the amendments, put them back in the proper order and make sure that we had them for the next day’s deliberations. It was not just what we might consider the ordinary working hours.
I think I am right in saying that, for better or worse, more than 1,000 amendments have been tabled by Labour party, Scottish National party and Government Members. That is a pretty record number. I think we have had up to 40 Divisions on the Bill. There has been a huge amount of work over and above, and we are all grateful for it. We are grateful for the work done to ensure that Hansard properly reflects what has gone on in this debate, so that things are put on the record accurately and that others can see what was argued, why it was argued and how it was argued not only when the Bill progresses through the House but also if and when it becomes an Act. We are also grateful to the other staff—the Doorkeepers and so on—who have helped with the process.
May I thank the Home Office team? Although, in a sense, they provide the notes to Government Members, I know how hard they have to work behind the scenes to ensure that what appears, particularly from the Minister and the Solicitor General, is informed, up to the minute and seemly and deals with difficult and probing issues. That is a huge amount of work behind the scenes. They have been helpful to the Opposition as well—
Keir Starmer
And we finished a day early. I would like to pay tribute to both the Minister and the Solicitor General. There are different ways of doing this. I am not over-experienced in it, but I know that sometimes there can be trench warfare, where both sides simply dig in, fire their ammunition and little is achieved. They have both listened to what we have said by way of our submissions and agreed on a number of occasions to think again in relation to the Bill. That is genuine progress, although it may not be reflected in the number of votes we have won. This is my second Bill Committee, and the number of votes I have won is still a very round number. However, I genuinely think we have achieved through our dialogue and through the approach of both the Opposition and the Government something that will pay dividends and will strengthen the Bill when it becomes an Act.
I also want to pay tribute to the SNP team. As will have been evident, there has been a lot of work behind the scenes to ensure that we are not duplicating one another’s work and that we think through what we do. That has been very helpful.
The Chair
Order. I think the hon. and learned Gentleman should sit down and allow Ms Cherry to speak for herself, because we are going to a vote.
Keir Starmer
I will. I hope that the hon. and learned Lady will mention the non-governmental organisations that have helped us. Thank you.
Joanna Cherry
I add my thanks to all those who have been mentioned so far. It has been a true pleasure to work so closely with the hon. and learned Member for Holborn and St Pancras. I pay tribute to the people behind the scenes who have greatly assisted Opposition Members in our preparation for this Committee.
A number of non-governmental organisations have been mentioned. I will not mention any one in particular; they know who they are, and they have been of great assistance to us. I also want to thank my hon. Friend the Member for Paisley and Renfrewshire North. This is my first time on a Bill Committee, and without his assistance, I would have been in even more of a guddle than I was on some occasions. I am very grateful to him for keeping me right.
The Chair
I add my thanks to all members of the Committee, the Clerks in particular, officials, the Official Report, the Doorkeepers and so on.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Speaker’s Statement
Thursday 19th May 2016
(8 years, 9 months ago)
Commons ChamberRead Hansard Text Amendment Paper: CWH Notices of Amendments as at 13 April 2016 - (14 Apr 2016)
Mr Speaker
In accordance with Standing Order No. 122D, I must announce the arrangements for the election of the Chair of the Backbench Business Committee for the new Session. If there is more than one candidate, the ballot will be held in Committee Room 16 from 11 am to 1.30 pm on Wednesday 25 May. Nominations must be submitted in the Table Office between 10 am and 5 pm on the day before the ballot, Tuesday 24 May. In accordance with the Standing Order, only Members who do not belong to a party represented in Her Majesty’s Government may be candidates in this election. A briefing note with more details about the election will be made available to Members and published on the intranet.
Bills Presented
Higher Education and Research Bill
Presentation and First Reading (Standing Order No. 57)
Secretary Sajid Javid, supported by the Prime Minister, Mr Chancellor of the Exchequer, Secretary Theresa May, Secretary Nicky Morgan, Secretary Greg Clark, Matthew Hancock and Joseph Johnson, presented a Bill to make provision about higher education and research; and to make provision about alternative payments to students in higher or further education.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 4) with explanatory notes (Bill 4-EN).
Finance Bill
Presentation and resumption of proceedings (Standing Order No. 80B)
Mr Chancellor of the Exchequer, supported by the Prime Minister, Secretary Sajid Javid, Secretary Nicky Morgan, Secretary Greg Clark, Greg Hands, Mr David Gauke, Damian Hinds and Harriett Baldwin, presented a Bill to grant certain duties, to alter other duties, and to amend the law relating to the National Debt and the Public Revenue, and to make further provision in connection with finance.
Bill read the First and Second time without Question put, and stood committed to a Committee of the whole House in respect of clauses 7 to 18, 41 to 44, 65 to 81, 129, 132 to 136 and 144 to 154 and schedules 2, 3, 11 to 14 and 18 to 22, and to a Public Bill Committee in respect of the remainder (Standing Order No. 80B and Order, 11 April); to be printed (Bill 1) with explanatory notes (Bill 1-EN).
Investigatory Powers Bill
Presentation and resumption of proceedings (Standing Order No. 80A)
Secretary Theresa May, supported by the Prime Minister, Secretary Philip Hammond, Secretary Michael Fallon, Secretary David Mundell, Secretary Theresa Villiers, the Attorney General, Robert Buckland and Mr John Hayes, presented a Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.
Bill read the First and Second time without Question put (Standing Order No. 80A and Order, 15 March); to be considered tomorrow, and to be printed (Bill 2) with explanatory notes (Bill 2-EN).
Policing and Crime Bill
Presentation and resumption of proceedings (Standing Order No. 80A)
Secretary Theresa May, supported by the Prime Minister, Mr Chancellor of the Exchequer, Secretary Michael Gove, Secretary Jeremy Hunt, Secretary Greg Clark, the Attorney General and Mike Penning, presented a Bill to make provision for collaboration between the emergency services; to make provision about the handling of police complaints and other matters relating to police conduct and to make further provision about the Independent Police Complaints Commission; to make provision for super-complaints about policing; to make provision for the investigation of concerns about policing raised by whistle-blowers; to make provision about police discipline; to make provision about police inspection; to make provision about the powers of police civilian staff and police volunteers; to remove the powers of the police to appoint traffic wardens; to enable provision to be made to alter police ranks; to make provision about the Police Federation; to make provision in connection with the replacement of the Association of Chief Police Officers with the National Police Chiefs’ Council; to make provision about the system for bail after arrest but before charge; to make provision to enable greater use of modern technology at police stations; to make other amendments to the Police and Criminal Evidence Act 1984; to amend the powers of the police under the Mental Health Act 1983; to extend the powers of the police in relation to maritime enforcement; to make provision about deputy police and crime commissioners; to make provision to enable changes to the names of police areas; to make provision about the regulation of firearms; to make provision about the licensing of alcohol; to make provision about the implementation and enforcement of financial sanctions; to amend the Police Act 1996 to make further provision about police collaboration; to make provision about the powers of the National Crime Agency; to make provision for requiring arrested persons to provide details of nationality; to make provision for requiring defendants in criminal proceedings to provide details of nationality and other information; to make provision to combat the sexual exploitation of children; and for connected purposes.
Bill read the First and Second time without Question put (Standing Order No. 80A and Order, 7 March); to be further considered tomorrow, and to be printed (Bill 3) with explanatory notes (Bill 3-EN).
Investigatory Powers Bill (Programme) (No. 2)
Monday 6th June 2016
(8 years, 8 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
The Minister for Security (Mr John Hayes)
I beg to move,
That the Order of 15 March 2016 (Investigatory Powers Bill (Programme)) in the last session of Parliament be varied as follows:
(1) Paragraphs (5) and (6) of the Order shall be omitted.
(2) Proceedings on Consideration shall be taken on the days and in the order shown in the first column of the following Table.
(3) The proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.
Table | |
|---|---|
Proceedings | Time for conclusion of proceedings |
Day 1 | |
New Clauses and new Schedules relating to, and amendments to, Part 1; new Clauses and new Schedules relating to, and amendments to, Part 8 New Clauses and new Schedules relating to, and amendments to, Part 2; new Clauses and new Schedules relating to, and amendments to, Part 5; new Clauses and new Schedules relating to, and amendments to, Chapter 1 of Part 9 | Three hours after the commencement of proceedings on the Motion for this Order Six hours after the commencement of proceedings on the Motion for this Order |
Day 2 | |
New Clauses and new Schedules relating to, and amendments to, Part 6; new Clauses and new Schedules relating to, and amendments to, Part 7 New Clauses and new Schedules relating to, and amendments to, Part 3; new Clauses and new Schedules relating to, and amendments to, Part 4; new Clauses and new Schedules relating to, and amendments to, Chapter 2 of Part 9; remaining proceedings on Consideration | Three hours after the commencement of proceedings on Consideration on the second day One hour before the moment of interruption |
(4) Any proceedings in Legislative Grand Committee and proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on the second day.
I am immensely grateful to you, Mr Speaker, for the opportunity to move the programme motion. I do not want to delay the House unduly, because there are many significant matters to debate in this important legislation. It has been the Government’s habit, in respect of the Bill, to engage in the most careful—
Mr Speaker
I am not sure whether “excited” is correct; I think “irritated” might be, but in my experience the right hon. Gentleman has never let that put him off in the past.
Mr Hayes
And will certainly not do so in the next two days, Mr Speaker.
The programme motion is relatively straightforward, because, as I was about to say, it is the Government’s habit, in respect of the Bill, to both listen and learn. Over the next two days, I hope to be able to show that we have done both. Scrutiny has been considerable, and the draft Bill that preceded the Bill that we are considering on Report was scrutinised closely by three parliamentary Committees, including a special Joint Committee, chaired and supported by Members of the Lords and the Commons, who gave the measure considerable attention. The Joint Committee produced a report with numerous recommendations, and members of the Public Bill Committee engaged in debate on those recommendations. There has therefore been a thorough process, and that will continue over the next two days.
Question put and agreed to.
Investigatory Powers Bill
Monday 6th June 2016
(8 years, 8 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
20:01 - The House divided: - Ayes: 64 / Noes: 278 - Question accordingly negatived.
20:13 - The House divided: - Ayes: 64 / Noes: 281 - Question accordingly negatived.
20:27 - The House divided: - Ayes: 67 / Noes: 281 - Question accordingly negatived.
23:01 - The House divided: - Ayes: 67 / Noes: 271 - Question accordingly negatived.
23:14 - The House divided: - Ayes: 66 / Noes: 272 - Question accordingly negatived.
The Minister for Security (Mr John Hayes)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 6—Civil liability for certain unlawful interceptions.
New clause 4—Offence of unlawful use of investigatory powers—
“(1) A relevant person is guilty of an offence if—
(a) by way of conduct described in this Act, he knowingly or recklessly obtains the communications, communications data, secondary data, equipment data or personal information of an individual, and
(b) the person does not have lawful authority to make use of the investigatory power concerned.
(2) Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the information referred to in subsection (1)(a).
(3) In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
(5) The offence in this section shall have precedence over any other relevant offences in the Data Protection Act 1998, Wireless Telegraphy Act 2006, Computer Misuse Act 1990, and the common law offence of misfeasance in public office.”
On behalf of the Intelligence and Security Committee of Parliament, to provide for a unified offence for the misuse of intrusive investigatory powers at the beginning of the Bill, in Part 1, rather than having each offence scattered throughout the Bill or in other legislation.
New clause 21—General duties in relation to privacy—
“(1) Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4 or section 216, 217 or 220,
(f) to vary or revoke such a notice,
(g) to approve a decision to give a notice under section 216 or 217, or
(h) to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e) or (f).
(2) The public authority must give effect to—
(a) the requirements of the Human Rights Act 1998, and
(b) other requirements of public law.
(3) The public authority must also have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
(b) the public interest in the integrity and security of telecommunication systems and postal services, and
(c) any other aspects of the public interest in the protection of privacy.
(4) The duties under subsection (3)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are also relevant in that context.
(5) The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this Act.
(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 66) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.”
This new clause sets out general duties in relation to privacy.
Amendment 14, in clause 1, page 1, line 4, at end insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to place privacy at the forefront of the legislation.
Government amendments 26 to 34.
New clause 1—Notification by the Investigatory Powers Commissioner—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within thirty days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
New clause 2—Referrals by the Intelligence and Security Committee of Parliament—
“(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner.
(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the outcome of any investigation, inspection or audit arising from such a referral.”
To allow the Intelligence and Security Committee to refer matters, on behalf of Parliament, to the Commissioner and to provide a mechanism for the Committee to be informed of the outcome.
New clause 16—Investigatory Powers Commissioner: obligation to notify—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(a) equipment interference,
(b) access or examination of data retrieved from a bulk personal dataset.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within ninety days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of the provisions under which the conduct has taken place.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of the on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
This new Clause would ensure that individuals are informed after the event that they have been a subject of investigatory powers.
Amendment 465, in clause 194, page 149, line 7, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
See amendment 469.
Amendment 466, page 149, line 12, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of Inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing Investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the Investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of subsection (2)(a) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (-)(a) – (b);
(f) human rights as defined in Section 9(2) of the Equality Act 2006.”
See amendment 469.
Amendment 295, page 149, line 19, leave out paragraph (a).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 296, page 149, line 20, leave out paragraph (b).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 297, page 149, line 21, leave out paragraph (c).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 7, page 149, line 23, at end insert—
“(3A) The term of office of a person appointed under subsection (1)(a) as Investigatory Powers Commissioner must not begin before the Intelligence and Security Committee of Parliament has consented to the proposed appointee.”
This amendment would require the appointment of the Investigatory Powers Commissioner to be agreed by the Intelligence and Security Committee of Parliament.
Amendment 298, page 149, line 28, at end insert—
“(5A) When appointing any person under subsection (1), the Prime Minister must act on the recommendation of—
(a) the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,
(b) the Lord President of the Court of Session, in relation to Judicial Commissioners appointed from Scotland, and
(c) the Lord Chief Justice of Northern Ireland, in relation to Judicial Commissioners appointed from Northern Ireland.”
An amendment to require the Prime Minister to act on the recommendation of the Lord Chief Justice of England and Wales, the Lord President of the court of Session, or the Lord Chief Justice of Northern Ireland, when appointing Judicial Commissioners.
Amendment 146, page 149, line 35, at end insert—
“(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the audit and inspection functions set out in this Part.”
This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function..
Amendment 467, page 149, line 35, at end insert—
“(7A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) The Judicial Appointments Commission;
(b) The Judicial Appointments Board of Scotland; or
(c) The Northern Ireland Judicial Appointments Commission.”
See amendment 469.
Amendment 468, page 149, line 35, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
See amendment 469.
Amendment 469, page 150, line 2, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
The purpose of these amendments is to replace the proposal to create an Investigatory Powers Commissioner with provisions to create a new Investigatory Powers Commission. They would provide that no appointment can be made except pursuant to a recommendation by the independent bodies in England and Wales, Scotland and Northern Ireland tasked with making judicial appointments in those jurisdictions.
Government amendment 35.
Amendment 8, in clause 196, page 152, line 9, at end insert—
“(4A) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to make explicit that the Investigatory Powers Commissioner is required to scrutinise the underlying safeguards, procedures and processes relating to bulk powers, including the arrangements for the protection of, and control of access to, material obtained through their use.
Amendment 18, in clause 197, page 153, line 8, after “Commissioner”, insert
“or the Intelligence and Security Committee of Parliament.”
On behalf of the Intelligence and Security Committee of Parliament, to allow the Prime Minister to issue directions at the request of the ISC (in addition to the Commissioner).
Amendment 189, in clause 198, page 153, line 21, leave out
“if the Commissioner considers that—”.
See amendment 195.
Amendment 472, page 153, line 21, leave out from “aware” to end of line 24.
See amendment 477.
Amendment 190, page 153, leave out line 23.
See amendment 195.
Amendment 191, page 153, leave out line 24.
See amendment 195.
Amendment 473, page 153, line 25, leave out subsections (2) to (5) and insert—
“(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(1) Exceptional circumstances under subsection (1) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
See amendment 477.
Amendment 192, page 153, line 25, leave out subsection (2).
See amendment 195.
Amendment 193, page 153, line 29, leave out subsection (3).
See amendment 195.
Amendment 194, page 153, line 32, leave out subsection (4).
See amendment 195.
Amendment 474, page 153, line 44, at end insert—
“(5A) Provide the person with such details of the submissions made by the public authority on the error and on the matters concerned pursuant to subsection (5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
See amendment 477.
Amendment 195, page 154, line 6, leave out from “having” to end of line 9.
These amendments will remove excessive restrictions on the Investigatory Powers Commissioner to instruct and inform individuals who have been subject to surveillance and will ensure that they are always notified of that fact when unlawful errors occur.
Amendment 2, page 154, line 10, leave out subsection (7).
Amendment 476, page 154, line 16, leave out paragraph (b).
See amendment 477.
Amendment 477, page 154, line 23, leave out paragraph (b).
These amendments would amend the Bill to provide for the Commissioner to notify any relevant person of any error made pursuant to the activities in the Bill, in order to allow those individuals to consider whether a claim may lie to the Investigatory Powers Tribunal for redress. It makes provision for non-disclosure in circumstances where the public interest in disclosure would be outweighed by a significant risk of prejudice to national security or the prevention and detection of crime.
Amendment 479, in clause 199, page 154, line 28, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 478, page 154, line 34, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”
See amendment 481.
Amendment 480, page 154, line 35, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 481, page 154, line 38, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
These amendments would remove the requirement to consult the Secretary of State and would make clear that in circumstances where a relevant error has been identified, material should be provided to the Tribunal by the Commission. It would make clear that any potentially unlawful use of the powers in this Act may be referred to the Tribunal by the Commissioners. These amendments would remove the requirement to consult the Secretary of State before giving assistance direct to other public authorities.
Amendment 482, in clause 203, page 159, line 2, at end insert—
“(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
This amendment would make it clear that voluntary, unsolicited disclosures are protected, and that any whistle-blower is also protected from criminal prosecution.
Amendment 483, in clause 208, page 160, line 29, after “determination” insert
“or ruling or decision, including relating to a procedural matter.”
See amendment 486.
Amendment 484, page 160, line 29, leave out from “Tribunal” to the end of line 30.
See amendment 486.
Amendment 485, page 161, line 8, leave out subsection (6).
See amendment 486.
Amendment 486, page 162, line 38, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this Section if its disclosure would seriously prejudice (a) national security or (b) the prevention and detection of crime.
(1E) Publication for the purposes of this Section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”
These amendments make clear that all decisions, determinations and rulings can be appealed on a point of law.
Amendment 487, page 162, line 38, at end insert—
“(6) After Section 4(5)(f) of the Human Rights Act 1998 insert—
‘(g) the Investigatory Powers Tribunal.’”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
Government amendments 36 to 43 and 48.
Mr Speaker
The Minister now has a second opportunity to practise his oratory.
Mr Hayes
As you know, Mr Speaker, practice makes perfect, and we have two days to perfect all we do and say.
We open the debate on the Bill with a group of provisions that address a matter which lies at its very heart. Throughout the lengthy consideration the Bill has enjoyed in its draft form and its final form, the issue of privacy, and the balance between security and private interest, has been frequently considered and debated. The balance that lies at the heart of our considerations and the proposed legislation is critical to the acceptance we need to engender for a Bill that is in the national interest.
The word “balance” was used by the hon. Member for City of Chester (Christian Matheson) during the Committee’s scrutiny of the Bill. He talked about the balance between national interest and personal interest— in my terms, the defence of personal privacy and the underpinning of the common good. For me, communal wellbeing and individual fulfilment are inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us. The issues of privacy and oversight are central to our considerations, and the Government are determined to ensure that the Bill reflects the concentration on those two matters.
We are clear that, in considering and passing the Bill, we must do more—more in respect of checks and balances, more in respect of safeguards and more in respect of oversight, and that is indeed what we have tried to do in the provisions we are considering. It is important to understand that privacy is at the very core of the Bill—it runs through its very fabric. The protection of private interests and the protection of the public are at the heart of all we seek to do.
In Committee, the hon. and learned Member for Holborn and St Pancras (Keir Starmer) tabled a new clause to strike a balance on this issue in sympathy with my view that privacy is woven throughout the Bill’s provisions. I have concluded that he was right to emphasise the need to make that palpably clear on the face of the legislation; to seek to reinforce the determination that I have described to protect private interest. It seemed to me that he was also right to suggest that that should be an overarching aspect of the Bill—in other words, that we should, explicitly, at the outset of this legislation, make it clear that privacy matters in the way that I have described. He therefore suggested—indeed, he has tabled an amendment today, too—that we add to the Bill just such an overarching emphasis on the defence of private interests.
By underpinning the powers and the sensitive capabilities available to our law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation, we have, for the first time, and in highly significant—one might even say groundbreaking—terms, struck an important balance between the role of the Executive and the role of the judiciary. That answers the call of those who, on the one hand, made the case in our earlier considerations that it is politicians who should decide these things because they are accountable to the people and those who, on the other hand, felt that that alone was not sufficient and that it was also important for lawyers to play their part in ensuring that decisions made in respect of warranting were reasonable, necessary and proportionate. The core principle—the necessity of proportionality—therefore applies to all such powers. It is underpinned by the changes that we seek to make in the Bill.
In essence, the provisions reflect the collective consideration of the three independent reviews I mentioned briefly in our short consideration of the programme motion. The Intelligence and Security Committee’s report on the draft Bill, which was published last year, called for the inclusion of an overarching clause dealing with privacy protections, and that call was echoed by the Opposition and the Scottish National party during the Committee stage.
The Government have been clear throughout the passage of the Bill that they would listen to recommendations that would improve this important proposed legislation, and that is just what we have done. We have tabled a number of amendments that demonstrate exactly that willingness to listen and that desire to strike the right balance.
Government amendment 34 relates to clause 10, an important safeguard in the Bill that prevents numerous powers in other legislation from being used to acquire communications data. There are a small number of exceptions to that restriction, and the purpose of the amendment is to ensure that they are clearly limited. The amendment therefore makes it absolutely clear that the use of regulatory powers to acquire communications data is limited to those that are exercisable in connection with telecommunications or postal regulation.
Government amendment 35 extends the oversight provided by the Investigatory Powers Commissioner to all efforts made by prison governors to prevent the use of illegal mobile phones in custodial institutions. That is something that the Interception of Communications Commissioner has previously called for, so I am pleased to be able to amend the Bill to take account of his advice. The amendment will also ensure that the Investigatory Powers Commissioner has oversight of any interference with electronic communications.
That issue was raised in Committee by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I said that we would give it further consideration. We have done so and come to the conclusion that her argument is right. Although this tort would apply only to very limited circumstances—indeed, we believe that it has never been used—I accept that in such cases a person should have the power to seek appropriate redress through the civil courts.
Probably the most important amendment tabled by the Government is new clause 5—the privacy clause to which I referred at the outset. It puts privacy at the heart of the Bill in precisely the overarching way that those who scrutinised it prior to and during Committee recommended. It responds, therefore, both to the recommendations of the Intelligence and Security Committee and to the extensive debates held since then. As we have indicated, the protection of privacy is woven throughout the Bill, but we recognise the merit in setting it out at the very start.
I do not want to indulge in hyperbole, but consideration of the Bill has been characterised by an unusual degree of co-operation to get it right across the House. All legislation benefits from that kind of considered scrutiny and co-operation. Legislation that is in the national interest, as this Bill certainly is, is far better for that kind of approach, and that is exactly the approach that the Government have adopted.
Dr Andrew Murrison (South West Wiltshire) (Con)
My right hon. Friend is being ever so slightly modest in relation to new clause 5, which is aimed primarily at protecting personal privacy. Clearly he has been listening, since one of the concerns expressed by industry is that interference and hacking may cause a failure of business confidence in IT. Subsection (2)(b) will go some way to protect the interests of such companies and businesses, since it states explicitly that the public authority must have regard to the public interest in such matters, including the viability of those undertakings.
Mr Hayes
It is true that such concerns have been expressed. Indeed, as we debate the Bill in further detail, particularly with regard to internet communication records, we will see that the capability of organisations to meet the Bill’s requirements must be met in a way that is not excessively expensive or impossible to implement, and that does not have the sort of unintended consequences described by my hon. Friend. It is partly the response to those overtures that has stimulated the changes under discussion. So it was, as he said, partly about what the Opposition said in Committee, partly about what the three reports said in respect of privacy and the consequences he described, and partly about the extensive discussions we have had with the sector on how these things could best be implemented.
Mr Dominic Grieve (Beaconsfield) (Con)
I realise that the Bill is complex, but could I ask my right hon. Friend—not during today’s debate, but before our consideration of the matter is concluded—to write to me setting out each of the penalties for each of the misconducts identified in the Bill? The point that I will make to him in due course is that it remains extremely complex to follow, and, in some cases, the penalties appear to be little more than a rap over the knuckles under the Data Protection Act.
Mr Hayes
My right hon. and learned Friend has made the point about incomprehensibility previously. Indeed, when we debated the draft version of the Bill, one of the telling points he made was that new legislation was needed in part because it should be more comprehensible, easier to navigate and thus more understandable to more people. He is right that the fact that existing provisions are to be found in a number of places makes it hard to determine exactly what powers there are and how the abuse of those powers will be dealt with. I happily concede the point that he has made, because it is important that all Members of this House, particularly he and the Committee that he chairs, are fully aware of the kinds of penalties that might apply. I have described them as “severe”, and I have made the point that wrongdoing cannot be tolerated. Therefore, the least I can do is agree with him that it would be helpful to set out those penalties as he has described. We will do so before the Bill completes its passage through Parliament, because it is only right for us to do so.
The purpose of the amendments and new clauses that we have tabled is to reflect the consideration of the Committee chaired by my right hon. and learned Friend, and to reflect the character and content of the debate that took place when the Bill enjoyed scrutiny in Committee. As we considered privacy to an increasing degree, it became clear that as well as the implicit emphasis on private interest, which runs through the Bill, there was a compelling case for an explicit commitment to privacy in the form of a new clause. To that end, it is right to say that both the minor parties on the Committee—in this case, the Scottish National party—
Mr Hayes
The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.
To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.
Keir Starmer (Holborn and St Pancras) (Lab)
I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.
This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.
However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.
Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.
In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.
I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.
Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.
Mr David Winnick (Walsall North) (Lab)
I appreciate all that my Front-Bench team has done and is trying to do to minimise the harm, as I see it, to privacy and civil liberties. But my hon. and learned Friend said that Labour accepts the principle, so may I say that some of us—myself, certainly, as I stated on Second Reading—do not accept the principle of the measures, consider the bulk powers unnecessary and will vote against them at every opportunity?
Keir Starmer
That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.
We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.
I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.
Mr David Davis (Haltemprice and Howden) (Con)
The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?
Keir Starmer
I take that point, although obviously one of the letters is not mine—
Mr John Hayes
I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.
Keir Starmer
I was about to say that I will happily publish my letter but that I did not have custody of that of the Minister. I will make my letter available so that all Members can see the exchange and what I asked for in my letter, and the response I received. If we do that straightaway we will have it for the rest of the debate, and certainly tomorrow when we return to bulk powers.
Turning briefly to our other demands, we have consistently asked the Government for an overarching privacy clause, and I will return to that in a moment. As the Minister said, however, new clause 5 is an overarching privacy clause. We have tabled new clause 21, and in a moment I will discuss the differences between the two. We also stated that the Bill must include a provision to make it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised—that has been a long-standing concern of the Labour party and the SNP. We have tabled an amendment on that issue and held constructive discussions, and it was the third issue on which we have been constructively engaged. The fourth issue is that there should be a higher threshold for access to an internet connection.
Simon Hoare (North Dorset) (Con)
As someone who served on the Bill Committee with the hon. and learned Gentleman, I welcome the approach taken by the Labour Front Bench. May I remind him that the concern to ensure the legal entity and rights of trade unions and trade unionists was shared across the Committee and not just by Labour and the SNP? It was echoed by the Minister when he responded to the debate, and by many members of the Committee.
Keir Starmer
I actually said that that issue was being pressed for by Labour and the SNP—I think that is accurate—but of course I accept that in Committee, and outside, there has been constructive engagement by the Government. The Minister was quick to indicate a willingness to consider this issue, and discussions have been ongoing. It is important to have clarity so that legitimate trade union activities are protected. Our new clause is now broader than the one we considered in Committee because it goes to national security as well as economic wellbeing. It therefore covers trade union activities in this country, and not just acts outside the British Isles, as would be the case if it was just about economic wellbeing. Such constructive engagement has pushed the Bill forward.
As I said a moment ago, we have made significant demands—I do not hide that—and the Government have moved significantly in response to those demands. This is not a list of victories, scalps, concessions or U-turns; our demands were significant and we stuck by them, and in fairness the Government have responded in the right spirit—that is for those demands that we know about, although we will come to others during the debate.
Mr Kenneth Clarke (Rushcliffe) (Con)
I am listening with interest because the question of an overriding privacy clause has concerned a lot of people. I was not involved in the Committee, and I am not a member of any Select Committees. I am waiting to hear whether the hon. and learned Gentleman is satisfied by new clause 5, which he appears to be. The drafting of legislation is always somewhat obscure nowadays, but does he think that the new clause is satisfactory? It says that the public authority should have regard to
“any other aspects of the public interest in the protection of privacy”.
Would he have preferred some reference to the right of a citizen of the United Kingdom to privacy? Does he think that there is a significant difference, or am I simply making a minor drafting point?
Keir Starmer
If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.
Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.
The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.
Mr Hayes
The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.
Keir Starmer
I am grateful to the Minister—that was what the Opposition pressed for.
There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.
As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.
Joanna Cherry (Edinburgh South West) (SNP)
It has been a pleasure to work with the hon. and learned Gentleman on the Bill. Like me, as a lawyer, he will have advised clients frequently on judicial review. He will no doubt agree that judicial review looks to the reasons given for a decision. There is no duty on the Secretary of State to give reasons for her decision on whether or not to grant a warrant. How can there be judicial review when no reasons are given?
Keir Starmer
The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”
Mr Hayes
The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.
Mr Davis
There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.
Keir Starmer
I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must
“consider the matters referred in subsection (1)”—
necessity and proportionality—
“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.
That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.
As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.
I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.
The Solicitor General (Robert Buckland)
The hon. and learned Gentleman and I debated this point closely in Committee, and I thank him for the way in which he has approached the matter. With regard to clarity, it is not now beyond any doubt that the test will depend not on the personality of commissioners, but the facts before them? They have a very clear basis on which to make their judgment, looking at the particular degree and seriousness of the case, and balancing the right to privacy with all the qualifications that he, I and others know exist in article 8.
Keir Starmer
I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to
“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.
Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.
Mr John Hayes
I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.
Victoria Atkins (Louth and Horncastle) (Con)
Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.
Keir Starmer
I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.
The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.
Mr David Davis
I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.
Keir Starmer
I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.
Mr Grieve
The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:
“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.
Keir Starmer
I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.
The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.
Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and
“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”
Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of
“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”
and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.
The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.
That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.
Mr George Howarth (Knowsley) (Lab)
I am grateful to my hon. and learned Friend for giving way again. If the recommendation should be a judicial one and if, as I think I understood him to say, the Prime Minister would not have the ability to overturn it, I fail to understand what the point would be of involving the Prime Minister at all.
Keir Starmer
The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.
There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.
Mr John Hayes
I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.
Keir Starmer
I am grateful for that indication.
I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.
Mr Grieve
It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.
I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.
Mr John Hayes
My right hon. and learned Friend makes a good additional point. He first, perfectly properly and sensibly, asked for clarity about the character of the penalties, and now makes a telling second point about how this Bill relates to other existing legislation that deals with these or related matters. A further note to the House, during the passage of this legislation, dealing with that second point is necessary, and I commit to providing it. Let me draw Members’ attention, as my right hon. and learned Friend will do, to the first part of the Bill, which deals with offences. I accept that that does not wholly answer the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Let me help the Minister a little. He has asked for more time at the end in which to deal with various points, but what we are bothered about is eating into that time when so many Members wish to speak. Being quicker in responses would help.
Mr Grieve
Thank you, Mr Deputy Speaker. I am grateful to the Minister for his response, and I look forward to such a review happening. It would be good if it could take place in plenty of time before the Bill is passed, because we must have this issue in mind if we want to take different steps in respect of this matter.
Let me move on to new clause 2 and the associated amendment 18, which reflect some of the important concerns of the Intelligence and Security Committee. The Bill contains some welcome reforms to the commissioners who are currently responsible for the audit of authorisations and warrants that govern the use of intrusive powers. I am sure that all Members will agree that the new judicial commissioners will be critical in providing the assurance we need that the intrusive powers are being used appropriately.
What is currently missing, however, is a power to refer cases to the commissioners by the Intelligence and Security Committee. The ISC considers strategic issues and overall policies, including operations of significant national interest, but that is quite a different role from the commissioners who audit specific authorisations and warrants. The Committee sees our roles as complementary and, at times, our own work will throw up concerns about issues that we ourselves are not in a position to investigate. It is entirely appropriate that matters arising from a strategic or high-level inquiry conducted on behalf of Parliament by the ISC be capable of being referred to the commissioners for more detailed audit.
To date, however, I have to say that the informal process has not been working well. I mentioned previously that the ISC discovered that the Interception of Communications Commissioner did not know how many selection rules GCHQ applied to its bulk intercept materials. In such circumstances, the ISC should be able to refer that matter to the commissioner to ensure that he investigates the selection rules and provides thorough oversight.
To provide a further example, in its report on the killing of Fusilier Lee Rigby, the ISC identified a number of concerns about the involvement of the intelligence services prior to events and particularly in respect of one of the killers. Despite numerous invitations to discuss the matter, the Prime Minister referred it to the commissioner, yet despite numerous representations to the commissioner for an opportunity for the ISC to raise its concerns directly with him, that opportunity has never been taken up. Neither has there been any response of any kind to the ISC’s representations.
I want to emphasise that the commissioner is independent. There is no suggestion on the part of the Committee that we should be telling the commissioner what to do, but if informal channels of communication do not seem to be working very well, it seems to us that greater co-operation is required to make this and every other aspect of our scrutiny and the commissioner’s scrutiny work better. It would therefore be helpful if there were a clear mechanism by which the commissioner could receive a reference and be required to acknowledge it. That is why we tabled new clause 2. It has been suggested that this might be in some way improper because the commissioner has a judicial function. I have to say that although the commissioner is a person who must have held judicial office, being a commissioner is not a judicial function, so I cannot see for the life of me why this requirement cannot be placed on him.
The Solicitor General
I have listened very carefully to what my right hon. and learned Friend has said about amendment 18, which the Government are prepared to accept. On the first part of new clause 2, the Government are prepared to accept referral in principle, but I would like to address in greater detail in my closing remarks, my concerns about reporting. I am sure my right hon. and learned Friend will listen carefully to what I have to say in due course.
Mr Grieve
I will certainly listen very carefully to what my hon. and learned Friend has to say. It was on that basis, I should make it clear, that I tabled new clause 2 as a probing amendment. If he can provide me with some reassurance, we will leave it there. This is an important issue, and the wording is crucial. We did not intend to put any constraint whatever on the commissioner in respect of the conclusions he reached, and I could even envisage the commissioner writing back and saying, “I have taken a preliminary look, but I’m afraid I disagree with you, and I do not think this is worthy of my investigation.” That is the lowest level of response that the Committee would hope to get from the commissioner. On that basis, I find it difficult to see that that would be putting improper pressure on the commissioner to provide a response.
I gratefully accept what my right hon. Friend the Minister for Security, has said about amendment 18. This means that we shall be able to go to the Prime Minister and ask him to give a direction in certain circumstances. Indeed, if the leading member of the Executive will be able to give a direction to the commissioner to carry out an investigation, it could hardly be improper for us merely to ask the commissioner to consider and acknowledge a request to investigate something.
I shall turn briefly to amendment 8, which deals with the oversight of safeguards relating to bulk powers. When we reported on the draft Bill, we recommended that bulk equipment interference warrants be removed from the Bill entirely. We said that we had
“not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn”.
In response to that recommendation, the Government helpfully provided the Committee with further extensive classified evidence, which we scrutinised in great detail. After carefully considering it, we concluded that there were circumstances—target discovery was an example—that would require a bulk equipment interference warrant and could not simply be covered by a thematic warrant. However, central to our willingness to accept that change is the need for underlying safeguards, policies, procedures and access controls to be in place.
In the last Parliament, the Committee’s inquiry on privacy and security examined at great length the underlying safeguards for bulk interception, and it was those that convinced the Committee that bulk interception was properly controlled. We are told that the same principle is going to apply to bulk equipment interference. We have sought assurances from the Government that the same safeguards, policies, procedures and access controls that apply to bulk interception will also be applied to interference, and we have received those assurances.
Nevertheless, given how critical those underlying safeguards are, we regard it as essential that the Bill place an obligation on the commissioner to have particular regard to the privacy safeguards when reviewing all matters under the Bill. The reason that this must be clearly stated on the face of the Bill is that the Committee discovered in its previous inquiry that the current Interception of Communications Commissioner did not know the detail of the underlying safeguards for bulk interception. This cannot therefore be taken for granted; there must be a specific obligation in statute.
Lucy Frazer (South East Cambridgeshire) (Con)
New clause 5 relates to privacy and states that the public authority must have regard to
“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.
If the new clause is accepted, could that affect the point that my right hon. and learned Friend is making? Would not the least intrusive method possible have to be used?
Mr Grieve
I think my hon. Friend makes a good point. I have an underlying confidence that the amendment we are discussing might commend itself to those on the Government Front Bench. On that basis, I do not intend to labour this point any further. I felt it was important to set it out, however, because it marked a significant shift in the Committee’s approach to this legislation. I wanted the House to understand why that change had come about after we had been given the extra classified briefing and why we came to the conclusion that we should accept this principle, alongside essential safeguards.
Mr David Davis
I have not read the individual amendments, so I am flying blind here. However, there is no doubt that this power is the most intrusive power in the Government’s armoury. One of the problems historically has been that the sheer volume of work being conducted means that scrutiny and oversight can sometimes slip. Would my right hon. and learned Friend’s amendment actually require the investigation of every single bulk intervention?
Mr Grieve
The amendment would require that
“the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
In our view, it is crystal clear that such a provision would meet the needs that we have expressed. As I have said, the Committee has been satisfied that the rules relating to bulk interception are adequate to provide the necessary safeguards. So, as long as we apply identical standards to equipment interference, the Intelligence and Security Committee believes that this process could be made to operate properly.
Mr John Hayes
I hear what my right hon. and learned Friend has said. He will be aware that, because of the arguments put forward by him and others—including Opposition Members—on bulk powers, we have agreed to a further independent review. The point of clarity here is that the review will look at the range of bulk powers and apply its assessment of necessity across that range. I just wanted to give him that additional assurance.
Mr Grieve
I am grateful to the Minister. Clearly, the more targeted a power can be, the better. Indeed, that was one of the reasons that the Committee expressed concern about whether the bulk power was required in the case of equipment interference. However, in classified evidence to us, the Government made the compelling case that simply relying on thematic powers or targeted powers would be likely to be insufficient and unsatisfactory. In changing our position, we have acknowledged that. However, that makes it all the more important that the safeguards should be properly in place. Those are the key amendments in this group that I wanted to bring before the House. I simply reiterate my earlier comment that the Government have really co-operated and moved a great deal in relation to this legislation. They have responded positively, as I shall be able to illustrate as we come to the further amendments.
Joanna Cherry
I have unashamedly tabled a lot of amendments to the Bill, including to part 8, and the Scottish National party will also support amendments tabled by others.
I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), with whom I worked closely in Committee. There are areas of divergence between the SNP and Labour on the Bill, but it was a pleasure to work with him and I hope that there will be other occasions on which Labour and the SNP can work together harmoniously.
I recognise that the Government have made significant concessions on part 1 of the Bill. I welcome their attempt in new clause 5 to introduce an overarching privacy requirement. Their belated conversion to the central recommendation of the Intelligence and Security Committee is a tribute to the arguments advanced by Opposition Members in Committee. I have to say, however, that I prefer new clause 21, tabled by the Labour party, which trenchantly states that regard must be given to the Human Rights Act 1998. For reasons that other hon. Members have already given, that is important. It is encouraging to see the Government making reference in their own amendments to the Human Rights Act. That gives me hope that they might have retreated from their plan to repeal the Act even further than we had hoped. That could be one of the little bits of good news to come out of this exercise.
I am also happy to welcome Government new clause 6, and I thank the Minister for Security for acknowledging that it reflects an amendment that was tabled by my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and me. It is quite an historic occasion when the Government accept an amendment tabled by the SNP, and I should like to mark it. I just wish that they would look at more of my amendments, but I fear that they will not do so. We are, however, pleased that the Government have seen fit to respond to a number of the concerns raised in Committee. That said, I want to be clear that they will have to go an awful lot further before the Scottish National Party can contemplate giving the Bill our support.
As I said on Second Reading, we would like to be able to support some aspects of the Bill, because they are necessary for law enforcement across these islands and reflect some powers that are already in force in Scotland. It is also a good idea to consolidate the powers and to have a modern, comprehensive law. However, we remain concerned about the legality of some of the powers that are still on the face of the Bill and the fact that they significantly exceed, such as with the retention of internet connection records, what is authorised in other western democracies. We continue to have severe concerns about the bulk powers enabled by parts 6 and 7 of the Bill. We are pleased that the Government have conceded that there should be a properly independent review of the bulk powers, which was argued for by both Labour and SNP Members in Committee, but we are yet to see confirmation of the review’s remit. I want to associate myself with what the hon. and learned Member for Holborn and St Pancras said about the review needing to look not at whether the bulk powers are useful, but at whether they are necessary. We look forward to the publication of the correspondence between the Government and the Labour party, so that we can see what is being proposed. My hon. Friends the Members for Paisley and Renfrewshire North and for Glasgow North East (Anne McLaughlin) will address bulk powers and internet connection records in more detail tomorrow.
I led for the SNP in Committee, where we tabled numerous amendments to try to get the principle of suspicion-based surveillance to run throughout the Bill. We support the idea that warrants should be focused and specific and that oversight should be robust and meaningful. Nearly all our amendments were opposed or ignored by the Government, which is why we cannot give the Bill our support at this stage.
On Second Reading, the right hon. and learned Member for Rushcliffe (Mr Clarke) sought to mock me for making what he described as
“combative and partisan speeches in support of an abstention”.—[Official Report, 15 March 2016; Vol. 607, c. 847.]
He expressed a degree of confidence in a shared consensus across this House about the principles that we should be adopting. I am afraid that my experience in Committee has shown his confidence to be misplaced. The amendments tabled by the Government for debate today are only a partial response to our legitimate concerns. The Government need to pay more than lip service to the importance of privacy and to the principles of necessity and proportionality.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am grateful to the hon. and learned Lady for giving way, because I agree with what she is saying. May I suggest that there is one means by which the Government could demonstrate good faith? In order to get to a vote on new clause 21, we will first have to vote down new clause 5. If the Government are serious about listening to the House, could they not withdraw new clause 5 to allow us to have a vote on new clause 21?
Joanna Cherry
That is an excellent suggestion that the Government should consider carefully.
I also mentioned on Second Reading that the United Nations special rapporteur had expressed concern about the Bill’s provisions, especially the bulk powers. That is why it remains the SNP’s position that until such time as a case has been made for the necessity of bulk powers, they should be removed from the Bill.
I make no apology for tabling numerous amendments, because this is a constitutionally important Bill. Their purpose is to try to bring the Bill into line with international human rights norms and to make it properly lawful. If the Bill is passed in its current form, there is a real risk that it will be the subject of challenge. Many of the threads running through it, such as the retention of data and bulk powers, have already been the subject of successful challenges or are awaiting the outcome of decisions. We need to be careful about passing powers into law when their legality has already been questioned by the European Court of Human Rights in Strasbourg, the European Court of Justice in Luxembourg, and a court in England.
In reality, I know that our amendments will not be accepted because we are already running out of time. We simply have not had enough time to consider the Bill. We have two days for Report, which I know is unusual, but we have short periods of time to speak about important parts of the Bill. I am only at the stage of making some introductory remarks and will have to curtail what I say about part 8 in the interest of other Members getting the right to speak. That will happen as we go through each part of programme motion.
Mr George Howarth
I share the hon. and learned Lady’s concern that maybe there is not enough time to consider the Bill as fully as she or I would like, but I am a bit confused. If that is the case, why did she not oppose the programme motion?
Joanna Cherry
I knew that that was a pointless exercise that would have eaten into the time that we have, so not opposing it was a practical decision.
Mr John Hayes
More pointedly, the Committee stage finished a day early, so why did she not debate the Bill for another day in Committee?
Joanna Cherry
If anyone reads the records of that Committee, they will see that I made more than my fair share of contributions. I do not have any problem with that. My issue is that other Members—the people sitting behind me, the Labour Members and Government Members—will not get a chance to speak and that we will not get a chance to vote on more than a handful of amendments. Given the degree of concern expressed about the Bill, it is frankly ridiculous that we will get to vote only on maybe eight or nine amendments over the next couple of days out of the hundreds of amendments that have been tabled. I am not ashamed to say that that is no way to legislate. We need to look at the way we go about things.
I am going to have to cut my cloth according to how much time is left, and I want to try to address some of the key SNP amendments to part 8 of the Bill, dealing first with amendment 465 and 466 to clause 194. Part 8 deals with oversight. At an earlier stage in the process, the Government said that they wanted to create a world-leading oversight body, but they have failed to do that. Our amendments seek to say that in addition to the investigatory powers and judicial commissioners there should be a separate body, known as the investigatory powers commission. It is not just some little notion of mine or of the SNP; it is what was recommended by the Royal United Services Institute’s independent surveillance review, the Joint Committee on the Draft investigatory powers bill, and by David Anderson QC’s investigatory powers review. David Anderson said that there should be a new independent surveillance and intelligence commission. It is a matter not only of what it is called; it is matter of what it actually does. Other hon. Members have tabled amendments relating to separating out the judicial and audit functions, and in the unlikely event that we get a chance to vote on them, the SNP will support them.
In written and oral evidence to the Bill Committee, we heard from Joanna Cavan, the head of the Interception of Communications Commissioner’s office. She reminded us that the judicial commissioners will deal only with some 2% of the applications falling within the remit of the oversight body. The remaining 98% will be subject to post-facto oversight only, so it is vital that that oversight is independent and robust. Creating a separate commission, as recommended by the three bodies I mentioned, would help to form a distinction between the approval and post-facto audit elements of the oversight body and would avoid the idea that judicial commissioners might be marking their own homework. That is what Labour’s amendment 146 seeks to address and the SNP will support it if we get a chance to do so. Joanna Cavan also told us that she had spoken to a number of the UK’s international oversight counterparts and that some had expressed surprised that the UK was going down the route of putting both the approval and the post-facto audit elements into the same body. Those amendments are crucial and I will be pressing them to a vote if I possibly can.
I turn now to the SNP’s amendments 467 and 469 and the question of the appointment of the judicial commissioners. I listened to what the hon. and learned Member for Holborn and St Pancras said in his speech, but the SNP does not think that Labour’s amendment goes far enough. The Government have made much of the main safeguard in the Bill being the role of judicial commissioners and the double lock, so it is vital that we get the judicial commissioner appointment process right. I suggest that, like the Justices of the United Kingdom Supreme Court, the commissioners should come from the jurisdictions and the judicial pool across the United Kingdom, not just the English Bench, and that the public must be confident that they are selected on merit, rather than because they can be trusted by government to be conservative or pro the state in their decision making. The SNP amendments therefore propose that, as well as having consultation with the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President in Scotland, these appointments should be subject to recommendations made by the independent Judicial Appointments Board of Scotland, the independent Judicial Appointments Commission in England and Wales, or the Northern Ireland Judicial Appointments Commission.
Pete Wishart
As usual, my hon. and learned Friend is making a powerful case. Does she agree that the judicial commissioners are the big flaw in the Government’s proposals today? This idea that somehow the Prime Minister could simply just agree with what has been suggested by judicial commissioners is concerning, because he could also disagree with what has been proposed and suggested. Does she have any concerns about that?
Joanna Cherry
I do, but let us suppose the judicial commissioners have been selected by an independent board. The Judicial Appointments Board of Scotland, the Judicial Appointments Commission—in England and Wales—and the Northern Ireland Judicial Appointments Commission are not made up just of lawyers; there are lay people and people from other walks of life on these bodies. That is to give the public confidence in the independent appointment process of the judiciary, and it is very important that the public—our constituents, who have concerns about how far the powers in this Bill are going—have confidence that the judicial commissioners who will be performing the oversight functions and enforcing the safeguards on this Bill are appointed independently, rather than being the right chap for the job being chosen. I choose my words advisedly there.
I am very conscious of not eating up too much time, Mr Deputy Speaker. I have discussed two crucial amendments that I would like to put to a vote on part 8. I have tabled other amendments that others will perhaps be able to speak about, such as the measures on post-notification following surveillance and the notification of errors. I briefly wish to turn to amendment 482, which is designed to put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution. The amendment reflects our concern that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly. Throughout the Committee process, we attempted to amend the Bill by inserting a public interest defence for whistleblowers. Regrettably, the Government were not prepared to accept it, but I was happy that when I proposed an amendment similar to this one to part 8, the Solicitor General said in Committee that he recognised the sentiment behind the amendment and was of a mind to give it further consideration. I urge the Government now to make a gesture by supporting this amendment, which I may push to a vote if I get the chance to do so.
The Solicitor General
The hon. and learned Lady is absolutely right in her recollection, and I am giving this matter anxious consideration. I would, however, point out that clause 203, dealing with the information gateway, underpins the important principles that she outlines about the rights of whistleblowers. I hope that is of some assistance.
Joanna Cherry
I hear what the Solicitor General says, but we took clause 203 into account when framing this amendment, and we remain of the view that it needs to be put beyond doubt in the Bill that whistleblowers will be protected from criminal prosecution and that there will be a public interest defence. I will mention that again when discussing other parts of the Bill.
Time prevents me from talking about the fact that the right of appeal in respect of the Investigatory Powers Tribunal is, regrettably, curtailed, but I do not think we are going to get to deal with that today. What I really want to say in conclusion is that this Bill seeks to put on a statutory footing very extensive powers, and it is vital that there is proper oversight of the way in which they are exercised. Part 8, as it stands, is pretty mealy-mouthed. It does not even implement the central recommendation of RUSI, the Joint Committee and David Anderson that there should be a separate investigatory powers commission. Without these amendments proposed by the SNP on key recommendations about oversight, we cannot support the Bill in its current form.
Sir Simon Burns (Chelmsford) (Con)
I am pleased to take part in this debate, although I shall only speak briefly because I know that many of my right hon. and hon. Friends, and Opposition Members, wish to participate. What we are debating in this group of amendments is crucial, because we are dealing with investigatory powers and, specifically, the role of technology in policing the modern age. Although I represent a constituency in Essex, which sometimes seems a world away from Westminster, I can tell hon. Members that my constituents and I worry about the same things: how we protect our country’s visible and invisible borders; how we keep our local community safe; and how we spot young people at risk of abuse or of going off the rails, so that we can do something about it before it is too late.
I certainly want to ensure that our liberties are fully understood and protected. That is why I welcomed the fact that during the Committee stage, which I took part in towards the end, the Government, my right hon. Friend the Home Secretary, the Solicitor General and the Minister for Security were prepared to listen to arguments—particularly those made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer)—that sought to strengthen the protections without compromising the aims of the legislation. It was refreshing, in many ways, not to have the normal Punch and Judy politics, whereby everything the Opposition proposed must be wrong because the Government had not thought of it first. That give and take, which is shown in Government new clauses 5 and 6, and in some of the amendments, particularly amendments 33 to 38 and 45 to 48, is important in meeting concerns about protecting civil liberties without compromising the main aims of the Bill. Those amendments have been tabled to make it clear that warrants or other authorisations should not be granted where information could be reasonably obtained by less intrusive means.
More than anything, however, we have to ensure the liberty of my constituents to live quietly and peacefully, free from attack—that is, of course, the most fundamental liberty of all—and it must be protected from those who wish them harm. Today such people live everywhere, and they have the powers, through the internet and modern communication techniques, to be everywhere, plotting, planning and executing their evil deeds. That is why I was pleased to see the supporting provisions that this group of amendments address in ensuring that we have not only those protections for my constituents and others, but a sympathetic and reasonable approach to protecting people’s civil liberties.
This Bill goes further than ever before in terms of transparency, making clear the most sensitive powers available to the security and intelligence agencies and the strict safeguards that apply to them. The controls on bulk powers and the double lock protection, which requires a sign-off for action by not just the Home Secretary but independent commissioners, are extremely important in winning public confidence in the measures being proposed. That will be discussed in greater detail when those Committee provisions come before us later in our proceedings on this Report stage.
I ask those who worry about interception powers to remember the following simple facts relating to technical capability. Since 2010, the majority of MI5’s top priority British counter-terrorism investigations have used intercepted material in some form to identify, understand or disrupt plots to harm Britain and its citizens. In 2013, this material was estimated to form between 15% and 20% of the total intelligence picture in counter-terrorism investigations. Data obtained by the National Crime Agency suggested that in 2013-14, interception played a critical role in investigations that resulted in more than 2,200 arrests and the seizure of more than 750 kg of heroin and 2,000 kg of cocaine, more than 140 firearms, and more than £20 million.
I believe that the power to intercept communications from potentially very dangerous people has helped to keep my constituents and those of other right hon. and hon. Members much safer and much more secure in their homes, in their jobs and on the streets they walk every day; but I also recognise the calls from some that we must be careful not to risk the fundamental liberties of our democracy as we do battle with potential terrorists. The Government have clearly been mindful of the Wilson doctrine and have tabled amendments, which I welcome, to require that the Prime Minister approve, rather than just be consulted on, all equipment interference warrants relating to parliamentarians.
We must ensure that the powers that we give to our police and security agencies, while they are sufficiently transparent, are also fit for purpose. Terrorists and other threats to my constituents’ safety are constantly evolving and adapting their techniques to trump the safety system. They do not want to get caught; they want to catch us out, and that is why we must be prepared to adapt our rules to keep pace with technology. We cannot use an analogue approach to tackling criminals in a digital age. Such an attitude just is not safe, and I am not prepared to go back to Chelmsford and explain to my constituents there and in Great Baddow, Chelmer Village, Beaulieu Park and Old Moulsham that I was not prepared to support measures designed to make them all more secure.
I support the proposals that my right hon. Friend the Home Secretary has outlined to strengthen judicial commissioners’ oversight and give commissioners a role authorising national security notices and technical capability notices, but we must not lose sight of the essence of why we need these proposals: we need them to help our police and security agencies to better identify the internet activity of potential threats, and indeed victims of crime, so they can do their jobs more quickly and effectively.
The people outside Westminster who think this is about stopping people being rude on Twitter, or cleaning up the Facebook jungle, are wrong. The Bill is about protecting those rights—the right to be irreverent or to disagree; the right to surf the net without being at risk from those who would do us harm. The Government have acted properly by being prepared to listen and to think again to a degree that I have not often encountered in the past. They have considered carefully, and we should be careful not to assume that our police and security agencies do not need these powers as amended, with the new safeguards that have been promised today. For those reasons, I shall support my right hon. and hon. Friends in the Lobby tonight.
Mr John Hayes
On a point of order, Mr Deputy Speaker. Reference was made earlier to an exchange of correspondence that I enjoyed with the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I wanted you and the House to know that that correspondence is now available in the Vote Office for the information of Members.
Mr Deputy Speaker (Mr Lindsay Hoyle)
That is certainly a good point of clarification. I call Harriet Harman.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
I rise to speak in support of amendment 146, which stands in my name and those of fellow members of the Joint Committee on Human Rights. The Committee conducted legislative scrutiny of the Bill and published our report—a unanimous report—on 2 June. Like previous speakers in this debate and everyone in their right mind, we wanted to make sure that the Government and, acting on behalf of the Government, the security services have the right intercept powers to keep us safe, while at the same time respecting privacy and not invading it abusively. I thank the members of the Committee who worked on that scrutiny, the legal adviser to the Committee, Professor Murray Hunt, the Committee staff and those who gave evidence.
Because I hope to catch your eye when we debate the next group of amendments, Mr Deputy Speaker, I shall speak briefly to amendment 146, echoing the points made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), who speaks on behalf of the Scottish National party. The amendment is about the role of the judicial commissioners. In essence, the commissioners are doing two things. First, they approve warrants issued by those who have the power to issue warrants—a very important role. A warrant that is not approved is a dead duck; it has to be stopped there and then. The role played by the commissioners in the approval process is set out in clause 21 and subsequent clauses. Secondly, the commissioners have an oversight and reporting function, which is set out in clause 194. They review and oversee the authorisation of warrants; they report to the Prime Minister and that report has to be published to Parliament.
It is a problem to have the same person both carrying out approval of a warrant and overseeing their approval of the warrant. The purpose of having all these measures in the Bill is to get them right. I pay tribute to the Home Secretary for her determination to understand and respond to the concerns. I hope that she will respond to the concern I am setting out now. I am not sure it is necessary to have two separate organisations, as the SNP proposes in its amendment; but I am absolutely sure that there has to be some separation of functions. Oversight of oneself is not realistic oversight.
Victoria Atkins (Louth and Horncastle) (Con)
Will the right hon. and learned Lady give way?
Victoria Atkins
The Joint Committee on the draft Bill debated this matter in some detail. We concluded that it is better for judicial commissioners to have experience on both sides of the fence, as it were, just as at the criminal Bar barristers tend to prosecute and defend, so that they have knowledge of both sides. Secondly, the Committee was optimistic that it would help to attract judges of the right calibre to apply to be auditors.
Ms Harman
It might well be useful for commissioners to have experience of both functions, but not at the same time and not using the same team of staff. I think ours is a relatively modest but important proposal. I am sure the hon. Lady can see that the arrangement could be clarified to create some sort of Chinese wall between the two functions. We are not suggesting that the functions be performed by separate organisations, but the hon. and learned Member for Edinburgh South West may be about to persuade us all that separate organisations are needed.
Joanna Cherry
I agree with the right hon. and learned Lady to an extent. Does her argument not boil down to the basic principle of Scots law and English law that no one should be a judge in their own cause? If one person grants a warrant then puts a different hat on and looks over whether that warrant was granted properly, they are being a judge in their own cause and there simply is not the proper transparency or oversight needed for public confidence.
Ms Harman
That is precisely my point. The Joint Committee on Human Rights and the independent reviewer have been helpful to the Government and bent over backwards in saying that separate organisations are not necessary—prima facie, one would say separate organisations are needed—but there should at the very least be Chinese walls. I therefore introduced the proposal in an amendment, and I hope to receive a response from the Government before the Bill goes to the Lords so that the matter can be looked at again, because we are a Joint Committee, and there are Members in the Lords who are eager to look at this. In the meantime, the Government’s responsibility, if they table amendments, is to submit a European convention on human rights memorandum with them. They have failed to do so. We regard those things as important. They are important for the House, so I urge them to do that. They should not table shedloads of amendments without producing an ECHR memorandum.
Lucy Frazer
Privacy is the right to be left alone. It was once proclaimed to be the most comprehensive of rights, and the right most valued by civilised men, which is why the privacy provisions in the Bill are important. There are many such provisions interweaved in the Bill. To give three important examples, targeted and bulk inception can take place only in the interests of national security, of tackling serious crime and of the economic wellbeing of the UK. It can take place only with judicial authorisation, and communications data—who, where, when—obtained from service providers have to be justified on the basis of a necessary and proportionate test. The relevant clauses all ensure that any interference with privacy is kept to a minimum.
I am pleased to have served on the Bill Committee, where the issue of privacy was raised with some force by the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I am pleased that as a result of the points that he and other Members made the Bill will be amended with an overarching clause on privacy to further protect and ensure the privacy of individuals. As my right hon. Friend the Member for Chelmsford (Sir Simon Burns) said, new clause 5 provides for the public authority to have regard to the question of whether the action can be reasonably achieved by “less intrusive means”. It also provides a new requirement for the consideration of the public interest in the protection of privacy. New clause 6 provides for an overarching civil liability, adding to the extensive criminal penalties in the Bill.
Those safeguards strike the right balance between privacy and scrutiny. As the hon. and learned Member for Holborn and St Pancras said, safety, security and privacy are not an either/or. That balance has been recognised in Europe, where the ECHR provides under article 8 respect for private and family life and also states that interference by a public authority is legitimate in some circumstances—in fact, the very circumstances outlined in the Bill, including the interests of national security, public safety, the economic wellbeing of the country and the prevention of crime and disorder.
The same balance has been recognised by the UN. In 2014, the UN High Commissioner for Human Rights stated:
“Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance”
if
“it is both necessary and proportionate”.
That balance is recognised by the public. A TNS BMRB poll in 2014 stated that 71% of respondents prioritised the reduction of the threat posed by terrorists, even if that eroded people’s right to privacy. The Bill seeks to ensure that the balance is right, and in enacting it we ought to remember that interference with privacy is often too much until it is too little.
Mr George Howarth
It is a pleasure to follow the hon. and learned Member for South East Cambridgeshire (Lucy Frazer). She took the opportunity to highlight the big principles, and showed how they are included in UN documents and the ECHR. It is useful to be reminded of that.
I speak as a member of the Intelligence and Security Committee, and support the amendments and new clauses tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve) and other members of the Committee, including me. I will not read them all out, because he dealt with them comprehensively. However, I wish to make some points about a couple of our proposals. Before doing so, however, I want to refer to the report that the ISC produced in the last Parliament after taking evidence on the provisions in the draft Bill. My right hon. Friend the Member for Slough (Fiona Mactaggart) and I both served on that Committee. I want to highlight two things in that report. First—and the right hon. and learned Member for Beaconsfield covered this—the overriding principle of privacy, which the hon. and learned Member for South East Cambridgeshire discussed, had to be made clearer in the Bill, and set out as unambiguously as possible.
Secondly, the right hon. and learned Member for Beaconsfield raised the issue of penalties. The measure does not exactly conform to what we wanted. We were concerned that the legislation was not consolidated into one measure. I shall deal with that more fully in a moment. Thirdly—if I do not take too much time dealing with the first and second concerns—I shall come on to the debate about judicial involvement in oversight. I hope to say a brief word about that.
I welcome new clause 5, which is helpful and goes much, if not all, of the way in meeting many concerns expressed by our Committee and by other parliamentary Committees, including Select Committees that have looked at the issue. However, in amendment 14—I know the Minister is going to refer to this, so I am not going to make a hard and fast principle out of it—we attempt to put privacy at the forefront of the Bill. If the Minister has found another way of doing that that would satisfy me I would be very pleased, but having read the Bill carefully, I do not think that there are sufficient safeguards to make it clear that that is the case.
The right hon. and learned Member for Beaconsfield referred to new clause 4, and was rightly exercised by the issue of penalties. I want to approach that issue from a slightly different direction. The Bill relies on existing legislation, including the Data Protection Act 1998 for which, if memory serves, I had ministerial responsibility. No apologies there—I think that the measure has served us quite well, although there might be other legislation for which I would apologise, but I am not going to say what it is. The Bill also relies on the Wireless and Telegraphy Act 2006, the Computer Misuse Act 1990, common law, as the right hon. and learned Member for Beaconsfield said, and, finally, misfeasance in public office. It is important that we have more information about penalties because, with such a sprawling collection of existing legislation, if someone breaks the provisions in any of those measures there should be clear and unambiguous penalties. I think that the Minister is going to address that matter shortly.
New clause 2 was tabled by the right hon. and learned Member for Beaconsfield, other members of the ISC and me. The right hon. and learned Gentleman made the point—nobody seems to have noted it, including the hon. and learned Member for Edinburgh South West (Joanna Cherry)—that a commissioner’s functions are not in any sense judicial. I am not going to argue the case fully at the moment, but I could envisage constructing a system where the process is more administrative—indeed, it is an administrative process—so the skills needed to operate it do not necessarily need to be judicial.
Tom Tugendhat
I am no lawyer, but having sat at the table of a judge for many years, I can tell the right hon. Gentleman that judges are well used to explaining their judgments. Indeed, if one reads their judgments, one will normally find an explanation so detailed that it would torture the mind, so I would not be at all surprised to hear that the commissioners will be very ready to give an explanation.
Mr Howarth
I have to say to the hon. Gentleman that that is not my experience. The right hon. and learned Member for Beaconsfield, who chairs our Committee, gave a specific example of where someone was unwilling not only to explain themselves but even to engage with the Committee. That is why I support new clause 2, which gives the Intelligence and Security Committee the ability to refer a matter to the commissioner and to at least give them a nudge in the right direction in terms of concerns that need to be looked at.
I do not share the complete pessimism of the hon. and learned Member for Edinburgh South West. The Bill has moved an incredibly long distance since the original draft Bill. There is some way to go, but we may hear further concessions today or tomorrow. However, I would be grateful if the issues I have raised could be addressed by the Minister when he replies.
Stephen McPartland (Stevenage) (Con)
I will keep my remarks short, Mr Deputy Speaker, as I appreciate that you want them to be short. I want to speak to new clause 16 and to amendments 189 to 195, but I will group them together.
I welcome new clause 5 because it puts privacy at the heart of the Bill. Although I found the draft Investigatory Powers Bill to be some kind of absolutely Orwellian nightmare that I would never have been able to support, this Bill goes some way towards being something that I would be able to support. It is horrible that we live in a society where this House, as a cross-party organisation, will have to legalise mass surveillance of every man, woman and child in the United Kingdom who has an electronic device, but sadly that is the society we live in, and we have to have a trade-off between what keeps us free from terrorism and what keeps us free in terms of privacy. I appreciate the Government’s efforts in trying to put privacy at the heart of the Bill.
On my new clause and my amendments, I want to look at possibly introducing into the Bill notification of surveillance against innocent people. I have tabled 63 amendments because I know there will be a review before the Bill gets to the upper House. The Government have been incredibly conciliatory and have provided concessions all the way through. I consider both the Ministers on the Front Bench friends, and I have been speaking to them about the Bill for many months—for well over a year, in fact. I have tried to be constructive in my disagreements with them; my amendments are probing amendments—they are there not to cause difficulty but to try to tease out more information.
The Bill fails to provide a viable system of notification of surveillance, particularly for those who have been wrongly surveilled. The current drafting covers only error reporting, and it places a higher importance on public interest—I understand that that is the source of the dispute about whether we should have new clause 5 or new clause 21, in terms of privacy and what is in the public interest. The concepts of public interest and serious error are difficult to define, and that leads to the problem of the judicial commissioners and others having to decide what those concepts are, and whether there are varying degrees of them. I want the Bill to state very clearly what we want them to be, so that we do not have that mission creep.
Adding notification to the Bill through a new clause would go some way towards ensuring that privacy is further enhanced as the backbone of the Bill. To put the issue into context, the countries that permit notification of surveillance include America, Canada, New Zealand, Germany, Belgium, the Netherlands, Austria, Ireland, Switzerland, Slovenia, Montenegro and Hungary, so this is not something that will be specific to the United Kingdom, and we will not be leading the way; we will be trying to catch up with our partners. I appreciate that each of those countries offers a different threshold in terms of how people will be surveilled, but there is no possibility of notification in the Bill at the moment. The Ministers have been very conciliatory, and if they want to intervene on me to say that they will accept my new clause 16, I will happily sit down. No, I didn’t think so. Never mind—we will keep trying.
Mr John Hayes
I am not going to surprise my hon. Friend or the House, but he will have noted that the changes we have brought forward to the Bill mean that if a serious error has been identified by the commissioner, the individual concerned will be notified. That is a significant and new provision, which goes some way towards satisfying his desire. Perhaps he can meet me halfway.
Stephen McPartland
I will certainly meet the Minister halfway, because I will not call a vote on my provisions, or vote against him on this aspect of the Bill. Obviously, I would like to get my own way, but I appreciate that this is about compromise, and both Ministers have been very good at compromising over the course of the Bill.
On error reporting and notification, it is worth noting the views expressed in sections 613 to 622 of the report by the Joint Committee on the draft Investigatory Powers Bill. I will not read them all out—you would not like that, Mr Deputy Speaker—but I would like to pull a few highlights out. The report states:
“Clause 171 provides that the Investigatory Powers Commissioner must inform a person about any ‘serious error’ when the Investigatory Powers Tribunal agrees the error is serious”,
and when that is in the public interest. But why would it ever be in the public interest to inform somebody that the error was serious? I cannot imagine that it would ever be in the public interest to do so, so they would never be informed.
The report also noted that the Bingham Centre for the Rule of Law felt that the approach in the draft Bill to error reporting was a matter of profound concern. Similarly, the Interception of Communications Commissioner’s Office believed the provisions in the clause were weaker than the current well-established powers. The requirement that an error should cause significant prejudice or harm was also criticised for setting a very high bar. In addition, the test was criticised by the Law Society of Scotland, Privacy International, the Interception of Communications Commissioner’s Office and Amnesty International UK for being poorly defined.
Victoria Atkins
I will be grateful to my hon. Friend if he can answer this question; it may negate the need for me to make a speech on this point. I have looked very carefully at new clause 16 and, indeed, new clause 1, and I cannot find any reference to “error” in them. New clause 16 seems to be a general clause of notification to anyone who is subject to a warrant. Is that correct?
Stephen McPartland
I certainly do not take any credit for being good at drafting new clauses. New clause 16 may not mention “error”, but I think it is mentioned in amendments 189 to 195, with which it should be considered. In “A Question of Trust”, David Anderson, QC, recommended that the judicial commissioners be given the power to report errors to individuals. I appreciate that the Minister has moved towards my point of view.
In conclusion, the Joint Committee made two recommendations. The first was that referral to the Investigatory Powers Tribunal was unnecessary and cumbersome and created a brake on the notification of errors. The second was that the error-reporting threshold should be reviewed so that it was more specific and defined.
Mr Alistair Carmichael
New clause 1 stands in my name and is supported by Scottish National party Members. It is remarkably similar to new clause 16, to which the hon. Member for Stevenage (Stephen McPartland) has just spoken. He says that his is a probing amendment; I regard mine as more than that, but I shall wait to hear what the Minister has to say when he replies to the debate.
I will preface my remarks on new clause 1 by highlighting some more general concerns. I absolutely agree with the hon. and learned Member for Edinburgh South West (Joanna Cherry) that the way in which today’s proceedings are being conducted is highly unsatisfactory. The time allowed is clearly insufficient. The Government have done themselves no favours, because all they do by insisting on conducting proceedings in this way is throw a bone to those in the other place and allow them to justify the greater degree of scrutiny that they will inevitably give to the Bill. It has already been referred to as a constitutional Bill that countenances the most egregious interference with individual liberty by the state. Such scrutiny ought to be done by this elected Chamber.
The fact that the Government are still taking on board amendments after the draft Bill, the report by David Anderson, QC, and the debate in Committee indicates an unsatisfactory attitude on their part. It shows that they are not yet putting privacy at the heart of the Bill, and that they are being dragged kicking and screaming to that position. On new clauses 5 and 21, it is unsatisfactory that the best provision has been proposed by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who speaks for the Opposition, and that we will not get to that unless we first vote down an inferior proposal that, while adequate and an improvement, is not as good as that proposed by the official Opposition. I reiterate a point that I made in an intervention on the hon. and learned Member for Edinburgh South West: the Government will still have the opportunity, if they are minded to take it, to insist on their version in the other place at a later stage, but this House should be empowered to express a view on new clause 21, which for reasons of procedure it is not able to do at present.
The thinking behind new clause 1 is that sunlight is the best disinfectant. The question of whether the Government will accept the approach suggested by us and the hon. Member for Stevenage relates to the question of whether privacy is at the heart of the Bill. As things stand, an individual will be able to find out whether they have been the subject of intrusion under the Bill’s powers only through a whistleblower or public interest litigation. It is a question of happenstance. If the Government are sincere and prepared meaningfully to protect our liberties and individual rights, they should not object to a process with all the necessary safeguards, as outlined in new clause 1. There should be no objection to notifying those who have been the subject of surveillance once the surveillance has concluded. As the hon. Gentleman has pointed out, that idea is not novel. It happens in a number of jurisdictions and has already been the subject of judicial approval and, indeed, instruction from the European Court of Human Rights in two cases, namely Klass v. Germany in 1978, and Weber and Saravia v. Germany in 2006.
Stephen Hammond (Wimbledon) (Con)
I understand that you would like Members to be brief, Mr Deputy Speaker. I am not a lawyer and I was not a member of the Bill Committee, so I will be brief.
On Second Reading, I spoke about an issue that has not yet been discussed today: economic cybercrime, which I have spoken about frequently in this House. The Government’s amendments enhance our ability to attack it. Constituents write to us as Members of Parliament; my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) has mentioned the huge number of privacy-related issues that have been raised, including the need to ensure that, if the Government were to interfere with the right to privacy, there would be proper oversight, safeguards and transparency. I do not need to re-rehearse her arguments, but I say to the Government and my right hon. Friend the Minister for Security that while new clause 5 may not be as perfect as those lawyers present would like it to be, it goes a long way towards satisfying the public.
I want to address two aspects of new clause 5. First, our constituents are interested in the issues covered by subsections (2)(a) and (4)(c). The onus is now on the need to consider less intrusive means and proportionality. That is an obligation. Notwithstanding my hon. and learned Friend’s comments about the need to understand the exact penalties for misuse, those two particular subsections go a long way to putting in place some protection.
Secondly, on economic cybercrime, we often talk about huge attacks on bank systems. New clause 5(2)(b) and (4)(b) relate to not just the public interest in detecting serious crimes, but the integrity and security of telecommunication systems and postal services. The reality is that there is a huge amount of low-level cybercrime that then moves into more serious economic cybercrime. By addressing the issue in the Bill, we are making a statement of intent. Given that there are so many e-commerce transactions today, it is hugely important that we protect and maintain the integrity of telecommunication systems, in the widest sense of the term, and postal services.
Whatever else may be, those of us who are not lawyers —we are not entirely sure what the difference is between new clause 21(2)(a) and (b), and new clause 5(4)(d) and (e), but I am looking forward to my right hon. and learned Friend explaining it—say “Well done” to the Government. New clause 5(2)(b) and 5(4)(b) protect all e-commerce, and putting the emphasis on maintaining the integrity of services, particularly telecoms services, will take away some of the public’s criticisms about the snoopers’ charter. The key points about subsections (2)(b) and (4)(b) are extraordinarily important, and I am pleased to see them in the Bill.
Tom Tugendhat
It is a great pleasure to speak on Report, particularly as the heirs of Walsingham and Egerton are on the Treasury Bench sitting in judgment over a Bill that will shape our civil liberties. In their day, Walsingham broke the code, and Egerton tried Mary, Queen of Scots. The techniques that they used are still in active use today, but they have been updated. It is a question no longer of codes on paper, smuggled out in brandy bottles, but of codes hidden in computer messages, apps and other forms of communication. That is why I welcome the Bill, which updates historical practice for the present day. It is essential that we put this into statute, because for the first time we are putting into a Bill what we actually mean. For years, the state has used interpretations of legal practice rather than setting out, and debating properly, what it should do. That is why I particularly welcome the joint approach to the Bill. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been instrumental in bringing a co-operative mood to the House, and I am grateful to him for doing so.
The Bill balances privacy against other considerations. As my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) pointed out, privacy is a fundamental right of all British citizens, and one that we have enjoyed for many years. But that privacy is only worth anything if we can live in safety, not just from the obvious risk of terrorism but from the risks of child abuse, drug smuggling and other forms of violence against the people of this country. I am grateful for the fact that the Government have balanced that privacy against those threats.
I will leave it there, because there are many more amendments to come. I could address some of them in detail, and perhaps I will be called to speak again.
Victoria Atkins
I had the privilege of being a member of the Joint Committee and of the Bill Committee, so I feel as though I have lived with this Bill for many months. I will be happy to see it become law when that happens. This Bill is vital in the modern age, and it is above party politics. It is about doing the right thing for our country and for our constituents.
The Joint Committee and the Bill Committee scrutinised the Bill intensively, and I think we considered something like 1,000 amendments in the Bill Committee. I am happy to say that we managed, nevertheless, to find some areas of agreement, namely that it was necessary to introduce a Bill to set out the investigatory powers of the security services and law enforcement agencies, and to update the scrutiny and transparency of those powers and the people who use them. It is a credit to everyone, on both sides of the House, who supports the principle of the Bill.
I welcome, as others have done, new clause 5 and Government amendment 30, which will put all related criminal offences in the Bill. That will create transparency by making the misuse of these powers absolutely obvious. I want to look at two proposed new clauses that have not received the same level of scrutiny as the Bill has enjoyed; I shall endeavour to change that in the next couple of minutes. New clause 1— the notifying criminals clause, as someone remarked to me—raises grave concerns about our impact on fighting crime and terror. I am conscious that the right hon. Member for Orkney and Shetland (Mr Carmichael), who tabled the new clause, is not his place. For anyone who has not read it, it would require the police and security services to notify, within 30 days of a warrant ending, anyone who has been investigated. There is no requirement for an error to have occurred, or anything of that nature. The only requirement is that someone’s data have been investigated.
James Cartlidge (South Suffolk) (Con)
On the point about a time limit of three months, is my hon. Friend aware that in 58% of requests for communications data in child abuse investigations, the data are more than six months old?
Victoria Atkins
Very much so. That shows the time sensitivity of many investigations, and I am grateful to my hon. Friend for bringing it up. We know from evidence sessions in both Committees that 100% of counter-terrorism cases and 90% of serious organised crime cases involve communications data evidence. We are talking about very serious cases indeed. My concern about new clause 1 is that it in no way removes the risk that high-level criminals and terror suspects will be told that they have been investigated by law enforcement and the security services. Such people are more likely to be the subject of warrants because of their criminality, so we would be handing the investigations to those criminals on a plate.
Tom Tugendhat
The level of encryption available in public today is such that new clause 1 would allow criminals to hide the deeds that they had formerly left unhidden, and therefore it would expose the country to even greater threat.
Victoria Atkins
That is exactly right. My hon. Friend makes the point that I was about to make, in fact.
Victoria Atkins
Not at all. [Interruption.] It has never stopped me before. The new clause will help criminals to evade investigation, arrest and prosecution. Serious organised crime gangs and terrorists talk to each other. They compare notes on investigative activities, whether ongoing or not. It will not necessarily be the first, second or third notification that starts to hint at the methodology of the police; it may be the 20th, but none the less those hints about patterns of behaviour will begin to emerge in the criminal world. Why on earth would this House pass legislation that would give serious organised crime gangs and terrorist gangs such an advantage?
Gavin Robinson (Belfast East) (DUP)
The hon. Lady is making a powerful point, but she is talking about a fear of what may be to come. Is she aware that already in Northern Ireland, a chief dissident republican has had the case against him dropped because the judge ordered that the security service had to unveil its surveillance techniques? If that is the case already, imagine what would happen if every dissident republican and every terrorist in the country got notification.
Victoria Atkins
I am extremely grateful for that intervention, which shows powerfully just how important this is. I am conscious of the time, so I will make just one more point about new clause 1. Subsection (1)(e) sets out that people are to be told if they have been informed on by covert human intelligence sources. That means informants, in everyday language. The new clause, if passed, would help criminal gangs to find out who is informing on them—and, presumably, to do great harm to those informants, because no criminal likes a grass.
I am conscious that new clause 16 mirrors much of new clause 1. It does not, in fairness, contain the reference to CHISs, but the fact is that it will have a similarly devastating effect on law enforcement and security service operations in this country.
Fiona Mactaggart
It seems to me that the reason for these amendments is the sense that there is not sufficient accountability in the secret services and other bodies. To that end, would the hon. Lady support new clause 2, proposed by the Intelligence and Security Committee, which would ensure that there could be proper investigation by a commissioner of anything that we felt required it?
Victoria Atkins
I hesitate to do the job of my Front-Bench colleagues, and I know that the Solicitor General will respond to that point.
I will finish by saying that the amendments and new clauses on privacy proposed by the Government reflect the fact that the scrutiny of the Bill has worked thus far and has been a worthwhile exercise. I hope that new clauses 1 and 16 will not trouble this House, because the Bill as it stands is much stronger for the many months of scrutiny it has received.
Caroline Nokes (Romsey and Southampton North) (Con)
It is a pleasure to follow my hon. Friend the Member for Louth and Horncastle (Victoria Atkins). This Bill runs to the absolute heart of Government—the duty to keep us safe. I will keep my very brief remarks to the issue of privacy, which was raised in Committee and remains a point of debate.
Nobody wishes to legislate to protect the public while at the same time unfairly and unreasonably restricting the rights of the individual. None of us wishes to give the state unnecessary powers. It was against such arbitrary authority that our first charter of rights, Magna Carta, was established, and why we can to this day find written into the stone floor of Tewkesbury abbey the words:
“Magna Carta est lex, caveat deinde rex”.
Magna Carta is law, and let the king beware. Today, as we debate the power of the state, I believe it is most certainly not the Head of State who threatens our law and safety, but those who threaten our state from within, and we must make our law accordingly.
The amendments that the Government have tabled on privacy protections go further than ever before in transparency, oversight and the safeguards that apply to the powers in the Bill. A great deal of advice has come from the Public Bill Committee, the ISC and the Opposition parties, and the Government have indeed listened. The amendments make it clear that warrants or other authorisation should not be granted where information could reasonably be obtained by less intrusive means. If the information is already on the internet—let us face it, there is plenty of such information—it can be got without recourse to the Bill’s provisions. The Government amendments also require persons exercising functions under the legislation to have regard to the public interest and the protection of privacy, as well as other principles that underpin the legislation. The amendments also make clear the criminal offences that apply to the misuse of powers under the Bill, which puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a public authority.
Privacy is at the heart of this vital piece of legislation, but its point is protection. The House should remember the statistics cited by my right hon. Friend the Member for Chelmsford (Sir Simon Burns), which I do not intend to repeat. We must be very careful not to dilute the Bill so much that the ability of our agencies to keep up with technology and those who use it in a very sophisticated way to do us harm is itself harmed. The baby must stay in the bath, while the dirty water is thrown out.
I know there has been a lot of interest in the Bill, but I also know that the amendments to it need to be weighed, rather than counted. In my estimation, it is a sound and important Bill. It will ensure that the warning in Tewkesbury abbey can be amended for our own time: “Magna Carta est lex, caveat deinde nequam”—Magna Carta is law, and let criminals beware.
Mr Alan Mak (Havant) (Con)
It is a pleasure to follow my hon. Friend the Member for Romsey and Southampton North (Caroline Nokes). Having spoken on Second Reading, when I focused on economic cybercrime, and having followed the progress of the Bill, I want to make a few brief remarks on the first group of amendments, particularly Government new clause 5.
Privacy is the ability of an individual or a group to seclude themselves or information about themselves and thereby to express themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but they share common themes. It was not a Latinist, but the Colombian novelist and Nobel prize winner Gabriel García Márquez who once observed:
“Everyone has three lives: public, private and secret.”
However, we all know there are some in our society whose secrecy cannot be allowed to prevail and whose privacy cannot be a shield that allows crimes to be committed, whether those crimes are terrorism, child abuse, people trafficking or cybercrime.
There are people who, as my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) mentioned, attempt to hide from the rest of society behind passwords, encryptions and codes known only among themselves. Because of the speed of technological change, they are operating not just outside the law, but ahead of it. That is why the law must catch up, and the Bill, with the Government new clauses, will achieve such a goal.
If we are to enhance the law and to codify the powers that our security services need to keep us safe, we must ensure that the oversight regime is robust and satisfies the other watchdogs of our liberty—Parliament and the press. The Bill creates a world-leading oversight regime that brings together three existing commissioners and provides new powers and resources for a new independent Investigatory Powers Commissioner. Under the Bill, warrants must be subject to a new double lock in that they must be approved by the judicial commissioner before they can be issued by the Secretary of State.
Privacy is the mirror image of oversight, and the Bill and its amendments go very far in protecting individual rights. In particular, the Bill sets out the very specific circumstances in which the powers it provides for can be used. It makes clear the purposes for which those powers can be used, the overarching human rights obligation that constrains the use of those powers and whether each of the powers in the Bill is to be used in a targeted way or in bulk. The Bill goes on in that vein.
I believe that the Government have listened, acted and got the balance right between the powers necessary to keep us safe, the right to privacy of the individual and the oversight necessary to ensure that neither privacy nor safety is compromised. In conclusion, the Bill represents the pragmatic pursuit of safety in the modern age and an effective renewal of the law in the digital age. I urge the House to support its passage tonight and in the coming days.
Chris Green (Bolton West) (Con)
We know that, since 2010, the majority of security services’ counter-terrorism investigations have used intercepted material in some form to prevent those seeking to harm the UK and its citizens from doing so. It is vital that our security services are able to do their jobs well to maintain the operational capabilities of our law enforcement agencies and to prevent terrorism and other serious crimes. Living in the modern world with modern methods of communication, we must ensure our security services have the powers they need to keep us safe, while at the same time addressing privacy concerns and not inadvertently damaging the competitiveness of the UK’s rapidly expanding technology sector or communications businesses more widely.
I will not dwell on the privacy and oversight matters that so many right hon. and hon. Members have dealt with, but go straight on to the impact on the technological sector, which was covered by the Science and Technology Committee’s short inquiry on the Bill. One of the main concerns I heard from the technology sector in evidence sessions was the view that there needs to be more clarity about the extraterritorial application of the Bill and more consideration of its compatibility with the legislation of other nations. Failure to provide clarity will make it harder for the Government to achieve their own aim of delivering world-leading legislation. I am pleased that the Government have listened to the Committee’s concerns about industry, and that they intend to develop implementation plans for retaining internet connection records in response to the Committee’s recommendations.
In responding to the revised Bill, TechUK has praised the fact that the Government have responded to the criticism about ICRs. However, it has raised concerns that, despite that, no single set of data will constitute an internet connection record and that, in practice, it
“will depend on the service and service provider concerned”.
This highlights the difficulties that industry will face if required to generate and retain ICRs.
Although the Bill does not go as far as the Science and Technology Committee would have liked, by putting 100% of cost recovery into the Bill, the supporting documents reaffirm the Government’s long-standing position of reimbursing 100% of the costs. I am pleased that the Government have listened to the pre-legislative scrutiny that it and the Committees have provided.
In conclusion, although finding the balance between privacy and security is not an easy task, I believe that Britain needs to put in place this legislation to bring together powers, which are already available to law enforcement agencies and the security and intelligence agencies, to protect the British people and to ensure our security services have the tools to keep us safe in modern Britain.
Simon Hoare
It was my pleasure to serve on the Bill Committee for most of its sittings. I put on the record my thanks to my right hon. Friend the Member for Chelmsford (Sir Simon Burns) for taking my place when I had to leave the Committee.
It is always with some reluctance, if not trepidation, that I raise a question on a point made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), not only because I am not right honourable, but because I am not learned, as I am not a lawyer. When my hon. and learned Friend the Solicitor General sums up, I invite him to try to address a concern that is exercising my mind, about a possible unforeseen consequence of new clause 2, namely the confliction and conflation of judicial and Executive oversight. My view is that those two things are best kept entirely separate. I fear that it may be an intended, or, as I would hope, an unintended consequence of what my right hon. and learned Friend the Member for Beaconsfield has suggested that the two might merge in a rather unsatisfactory and possibly even anti-democratic way.
Mr Grieve
I certainly would not wish to see the two conflated, but—to reassure my hon. Friend—I really do not think that that is the case. The point at issue is that the commissioner has a specific power of investigation of particular things, whereas the Committee looks at the generality. It seems to me very much in the public interest that the Committee should be able to refer to the commissioner something that it thinks the commissioner might look at. All we ask of the commissioner is that he should acknowledge that and indicate to us whether he is minded to look at it. Beyond that, it is entirely a matter for him. There needs to be some formal structure, because otherwise there is the risk that that communication will not be there.
Simon Hoare
I am grateful for my right hon. and learned Friend’s clarification. That might be the intention of the structure but I still have that reservation and look to the Solicitor General either to confirm what our right hon. and learned Friend has said or to confirm or address my suspicion.
This is probably the most important Bill that we will deal with. I support new clause 5, and think that it amplifies incredibly well the approach that Members on the Treasury Bench and the Opposition Front Bench took in Committee. The words, tone, tenor and approach of the hon. and learned Member for Holborn and St Pancras (Keir Starmer) are to be welcomed. I always contended that the rights and the importance of the privacy of our constituents were an unspoken golden thread running through the Bill. Through new clause 5, the Government have decided—I therefore support them in doing this—that as those rights are not always implicit they should be made explicit.
Like my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), I will oppose new clauses 1 and 16. It seems to me utterly and totally counterproductive and counter-intuitive to give those who have been investigated, either correctly or incorrectly, notice of the fact that they have been. I take slight issue with the hon. and learned Member for Edinburgh South West (Joanna Cherry)—she will not be surprised at that. In Committee, I was never convinced that her party got the fact that we were talking about delivering security and safety for our constituents. This Bill does so. This is not an abstract theoretical debate in a law faculty; it is about providing security and safety for our citizens—the first duty of all of us.
I am pleased with the Government’s approach and the way in which they have responded. I am grateful for the tone of the Front Bench team and look forward to supporting the Bill as it progresses through the House.
Huw Merriman (Bexhill and Battle) (Con)
Much of the Bill as it currently stands is about drawing together many strands of existing legislation, much of which has been criticised previously for being written in an arcane and inaccessible manner, and about providing more protection of and ensuring compliance with our fundamental human rights. I therefore welcome the Bill, as it makes matters much clearer, and preserves powers and the rights that we hold so dear while protecting our constituents from more modern forms of terrorism, which we must all be so wary of and do everything we can to protect against. In assessing the oversight regime I will focus on the roles of two bodies that in my view provide sufficient oversight and checks and balances on the use of investigatory powers, in the light of the Government provisions that we are debating today.
The Solicitor General
I am sure hon. Members on both sides will forgive me if I have to canter through all the issues that have been raised at the pace of a Derby thoroughbred and so do not name them in turn. I am grateful for the thrust of the debate, which dealt very much with the historic but continuingly important balance between the need to protect the individual’s right to privacy—a right against intrusion—and the clear national interest in making sure that the agencies responsible for the detection and prevention of crime and terrorism have the tools to do the job.
I will deal first with new clause 21, which has taken up much of the debate. In an intervention on the hon. and learned Member for Holborn and St Pancras (Keir Starmer), my right hon. Friend the Minister for Security indicated that we will consider the position with regard to new clause 5 very carefully. That is indeed the case. It seems to me that we are very close indeed on the provision on privacy. There is one issue, namely the effect of the Human Rights Act. I would say that it is axiomatic that all public bodies are subject to that Act, so an amendment to make that even clearer is not necessary. However, we are going to consider the matter very carefully, and I invite further deliberation in another place. In that spirit, I invite hon. Members on all sides to support Government new clause 5. As someone who has consistently advocated action on privacy by this place, as opposed to leaving it to the courts, I am delighted to see that new clause being placed in a major piece of legislation that I hope will stand the test of time.
I shall now deal with amendments tabled on behalf of the Intelligence and Security Committee. I am grateful to its members for their careful consideration of the Bill. In an intervention on my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the Committee Chair, I indicated the Government’s position on amendment 18. Amendment 8 relates to the underlying internal safeguards. The Government are happy to accept this amendment so that greater clarity and reassurance to Parliament and the public can be provided. Let me make it crystal clear that the remit of the Investigatory Powers Commissioner will include oversight of the internal handling arrangements and processes that enable compliance with the Bill’s safeguards.
I have already indicated that in principle the Government accept the first part of new clause 2, which concerns the referral of issues to the Investigatory Powers Commissioner, and we will table an amendment in the other place to give effect to that intention. As I said, however, I have rather more hesitation with regard to reporting. In agreeing the principle of reference and referral, we are already creating that line of communication that, as my right hon. and learned Friend said, was not working in one respect.
I am grateful to my hon. Friend the Member for North Dorset (Simon Hoare) for directly outlining some of the tensions that still exist with regard to the judicial status and independence of the Investigatory Powers Commissioner, and a role that could lead to an overlap or—dare I say it?— confusion, given how important it is to have clear lines of authority and reporting.
Mr Grieve
I realise that time is short. The Minister has gone a long way towards reassuring me, and I certainly do not wish to press this issue to a vote unnecessarily. However, if there is a reference mechanism, an obligation of acknowledgement and at least an indication of what is happening and a report back seem eminently reasonable—after all, the Intelligence and Security Committee exists on Parliament’s behalf to provide scrutiny. I simply do not see how it undermines any element of judicial independence whatsoever.
The Solicitor General
I am not saying that the new clause is unreasonable; I am simply being cautious about the need for those involved—namely the commissioner—to be part of the process, and to be consulted if there is to be such a change. With regret, I cannot at this stage support that part of the new clause, but I am grateful to my right hon. and learned Friend for the clear, careful and considered way that he and the Committee have put that point.
New clause 4 relates to clarity on criminal offences. The Minister for Security has properly said that the Government will undertake to prepare a schedule of existing criminal law, and I think he will find that whatever our arguments about the level of penalty in the Data Protection Act, every bit of potential misconduct or criminality that could be carried out under the Bill will be covered by existing criminal law. As practitioners in the field for many years, my right hon. and learned Friend and I are always anxious about the creation of unnecessary new criminal offences. My simple argument is that I am not persuaded that new clause 4 would add anything to criminal law or achieve the sort of clarity that he and others seek, and I am therefore not persuaded and able to accept the new clause.
Let me move swiftly to the amendments on judicial commissioners which were tabled by the hon. and learned Member for Holborn and St Pancras. I listened carefully to the arguments, and I agree that there is real merit and value in providing expertise from the heads of the judiciary in the appointment process. I also believe that there is a role for the Lord Chancellor in these appointments. He has responsibility for ensuring that the Courts and Tribunals Service has enough judges to operate effectively. Given the limited number of High Court judges, these appointments could affect that. Involving the Lord Chancellor in making a recommendation on appointment would help to avoid any accusations of judicial patronage. On the basis that we will table an amendment in the other place to fulfil that aim, I invite the hon. and learned Gentleman to withdraw his amendments.
Let me deal quickly with the judicial appointments commission and the amendment tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry). I am persuaded by the argument of Lord Judge who, when asked in the Bill Committee about that matter, said:
“there is no point whatever in involving the Judicial Appointments Commission”.
Why? Because judges will have been through the process themselves, and the measure is therefore completely otiose.
On the hon. and learned Lady’s other amendments, I am still not persuaded that the creation of an independent non-departmental public body—namely the investigatory powers commission—would add anything to the thrust of reforms that we are already undertaking, other than cost to the taxpayer. I therefore do not think that creating a new statutory body will add anything to the public interest, which is what we are trying to serve.
The right hon. and learned Member for Camberwell and Peckham (Ms Harman) chairs the Joint Committee on Human Rights, on which I served in the previous Parliament. She is not currently in her place, but I wish to deal with the question of the Chinese wall. She was right to make the concession about David Anderson, who himself said there should be a relationship between the judicial authorisation function and the inspectorate. Indeed, there needs to be a distance, but creating the sort of division envisaged in the amendment would break the important link that exists to allow those who review fully to understand how the process works in practice. For that reason, the Government will seek to resist that amendment if it is pushed to a vote.
My hon. Friend the Member for Louth and Horncastle (Victoria Atkins) clearly and eloquently set out her objections to the amendments tabled in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and others on notification. I cannot improve on her argument, except to say that comparisons with other jurisdictions are somewhat invidious, bearing in mind the differing natures of, for example, an inquisitorial process as opposed to the adversarial process that we use in the United Kingdom. My worry is simply that those who are continuing in their criminality will change their behaviour as a result of notification. For that reason, the Government cannot accept the amendment.
On amendment 482, I am happy to consider how to make it absolutely clear that whistleblowers can make disclosures to the IPC without fear of prosecution. I agree that that should be the case, and I will consider how to amend the Bill to bring even greater clarity to that issue. Amendments can also be tabled in the other place, which I hope the hon. and learned Member for Edinburgh South West will take on board when considering her party’s position.
On the wider amendments to the Investigatory Powers Tribunal, let us not forget that the Bill already represents a significant step forward. The only route of appeal available to complainants from decisions of that tribunal is currently a direct reference to the European Court of Human Rights. We are now establishing a domestic right of appeal that allows parties to seek redress in the United Kingdom, and that will also lead to greater speed. My concern is that if every decision of the IPT could be made subject to appeal, the operation of that body would grind to a halt, which I know is very much the view of its president. Currently, only 4% of claims questioning the tribunal’s work have any merit to them, so I am worried about the increasing expense and loss of efficiency that would result.
Similarly, the amendment that would force public hearings would, I am afraid, remove the tribunal’s discretion in deciding how best to operate in the public interest. It currently regularly holds public hearings and publishes copies of its judgments when appropriate.
The requirement to appoint special advocates is unnecessary—I argued that case forcefully in Committee. I can see no reason for departing from the position on declarations of incompatibility with the Human Rights Act, because only a small number of courts currently have that reservation.
I will close with this remark: privacy is now very clearly at the heart of the Bill. I am very proud of that, and Members on both sides of the House will agree that this is a job well done.
Question put and agreed to.
New clause 5 accordingly read a Second time, and added to the Bill.
The Solicitor General
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 8—Further provision about modifications.
Government new clause 9—Notification of major modifications.
New clause 20—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—
(a) the defence of the United Kingdom by Armed Forces; or
(b) the foreign policy of the United Kingdom.
(2) A warrant may be certified by the Secretary of State if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.
(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);
(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and
(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.
(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”
Amendment 267, in clause 15, page 12, line 3, leave out “or organisation”.
These amendments would retain the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided. This narrows the current provisions which would effectively permit a limitless number of unidentified individuals to have their communications intercepted.
Amendment 25, page 12, line 7, leave out “or” and insert “and”.
On behalf of the Intelligence and Security Committee of Parliament, to limit the potentially broad scope of thematic warrants involving people who “share a common purpose” by ensuring that they also must be engaged in a particular activity.
Amendment 131, page 12, line 8, after “activity” insert
“where each person is named or otherwise identified”.
These amendments seek to make more specific the currently very broadly worded thematic warrants in the Bill, to make it more likely that such thematic warrants will be compatible with the requirements of Article 8 ECHR as interpreted by the European Court of Human Rights.
Amendment 268, page 12, line 9, leave out “or organisation”.
See amendment 267
Amendment 132, page 12, line 11, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 272, page 12, line 12, leave out paragraph (c).
See amendment 267.
Amendment 306, page 12, line 13, leave out subsection (3).
See amendment 267.
Amendment 218, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 219, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 220, page 13, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 221, page 13, line 16, leave out subsection (1)(d).
Amendment 222, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 223, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 224, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 225, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 226, page 13, line 3, leave out subsection (2)(d).
Amendment 227, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 228, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 229, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 230, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 231, page 13, line 45, leave out subsection (3)(d).
Amendment 232, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 233, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 234, page 14, leave out lines 11 and 12.
Amendment 235, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 312, in clause 18, page 14, line 22, leave out paragraph (c).
See amendment 313.
Amendment 313, page 14, line 24, at end insert—
‘(2A) A warrant may be considered necessary as mentioned in subsection (2)(b) and (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”
These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising interception and delete the separate subsection relating to economic well-being of the UK.
Amendment 236, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 237, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 262, page 14, line 38, at end insert—
‘(6) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within this section.”
This amendment restricts the application of warrants in relation to trade union activity.
Amendment 238, page 14, line 39, leave out clause 19.
Amendment 208, in clause 21, page 17, line 4, leave out
“review the person’s conclusions as to the following matters”
and insert “determine”.
Amendment 209, page 17, line 10, leave out subsection (2).
Government manuscript amendment 497.
Amendment 265, page 17, line 10, leave out from “must” to end of line 11, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 208 and 209 (which are a package).
Government manuscript amendment 498.
Amendment 314, in clause 24, page 18, line 39, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 316.
Amendment 315, page 18, line 41, leave out subsection (b) and insert—
“(b) the warrant involves a member of a relevant legislature.”
See amendment 316.
Government amendment 53.
Amendment 316, page 19, line 7, leave out subsection (2) and insert—
“(2) Further to the requirements set out elsewhere in this Part, the Judicial Commissioner may only issue a warrant if—
(a) there are reasonable grounds for believing that an indictable offence has been committed,
(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),
(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,
(d) it is in the public interest having regard to the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”
These amendments would ensure that applications for warrants to intercept the communications of elected politicians would be made to the Judicial Commissioner rather than to the Secretary of State via the Prime Minister. They would also set out additional requirements that the Judicial Commissioner must take into account before granting a warrant.
Amendment 1, page 19, line 8, at end insert
“and where the member is a member of the House of Commons he must also consult the Speaker of the House of Commons.”
This amendment would require the Secretary of State to consult the Speaker before deciding to issue a warrant that applied to an MP’s communications.
Amendment 137, page 19, line 8, after “Minister” insert
“and give sufficient notice to the relevant Presiding Officer of the relevant legislature to enable the relevant Presiding Officer to be heard at the hearing before the Judicial Commissioner.”
Amendment 138, page 19, line 14, at end insert—
“(4) In this section “the relevant Presiding Officer” means—
(a) the Speaker of the House of Commons,
(b) the Lord Speaker of the House of Lords,
(c) the Presiding Officer of the Scottish Parliament,
(d) the Presiding Officer of the National Assembly for Wales,
(e) the Speaker of the Northern Ireland Assembly,
(f) the President of the European Parliament.”
This amendment adds the safeguard of giving the Speaker, or other Presiding Officer, of the relevant legislature, sufficient notice before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications, to enable the Speaker or Presiding Officer to be heard at the hearing before the Judicial Commissioner.
Amendment 139, in clause 25, page 19, line 16, leave out subsections (1) to (3).
This amendment removes the power to apply for a warrant the purpose of which is to authorise the interception, or selection for examination, of items subject to legal privilege.
Amendment 140, page 19, line 44, leave out subsection (4)(c).
See amendment 141.
Amendment 141, page 20, line 7, after “considers” insert—
“(a) that there are exceptional and compelling circumstances that make it necessary to authorise the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and
(b) ”.
These amendments introduce a threshold test for the interception or examination of communications likely to include items subject to legal privilege, reflecting the strong presumption against interference with lawyer-client confidentiality.
Amendment 307, in clause 27, page 21, line 7, leave out “or organisation”.
See amendment 267.
Amendment 308, page 21, line 8, leave out “or organisation”.
See amendment 267.
Amendment 309, page 21, line 13, leave out
“or describe as many of those persons as is reasonably practicable to name or describe”
and insert
“or specifically identify all of those persons using unique identifiers.”
See amendment 267.
Amendment 310, page 21, line 15, leave out “or organisation”.
See amendment 267.
Amendment 311, page 21, line 19, leave out
“or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe”
and insert
“all of those persons or sets of premises.”
See amendment 267.
Amendment 19, in clause 29, page 22, line 25, leave out
“before the end of the relevant”
and insert “during the renewal”.
See amendment 20.
Amendment 20, page 23, line 4, at end insert—
“(4A) ‘The renewal period’ means—
(a) in the case of an urgent warrant which has not been renewed, the relevant period;
(b) in any other case, the period of 30 days ending with the relevant period.”
On behalf of the Intelligence and Security Committee of Parliament, to prohibit the possibility of a warrant being renewed immediately. Clauses 28 and 29 would currently theoretically allow for warrants of 12 months duration rather than the intended six.
Amendment 21, page 23, line 16, at end insert—
“(8A) In this section ‘urgent warrant’ has the same meaning as in section 28.”
See amendment 20.
Amendment 147, page 23, line 19, leave out clause 30.
Government amendments 54 to 57.
Amendment 142, in clause 30, page 24, line 45, at end insert—
“(10A) Section 21 (Approval of warrants by Judicial Commissioners) applies in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as it applies in relation to a decision to issue a warrant; and accordingly where section 21 applies a Judicial Commissioner must approve the modification.”
This amendment seeks to ensure that major modifications of warrants require judicial approval.
Government amendment 58.
Amendment 148, page 25, line 22, leave out clause 31.
Government amendments 59 to 73.
Amendment 317, page 34, line 21, leave out clause 44.
This amendment would delete a Clause which permits the creation of additional interception powers immigration detention facilities.
Amendment 15, in clause 45, page 34, line 42, leave out “C” and insert “D”.
Consequential upon amendment 16.
Amendment 16, page 35, line 7, at end insert—
“(3A) Condition C is that the interception is carried out for the purpose of obtaining information about the communications of an individual who, both the interceptor and the person making the request have reasonable grounds for believing, is outside the United Kingdom.”
On behalf of the Intelligence and Security Committee of Parliament, to reinstate the current safeguard in RIPA that the person being intercepted must be outside the UK.
Amendment 17, page 35, line 8, leave out “C” and insert “D”.
Consequential upon amendment 16.
Government amendments 75 to 77.
Amendment 299, in clause 51, page 41, line 18, at end insert—
“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
An amendment to introduce a public interest defence for interception disclosures.
Government amendment 74.
Government new clause 11—Persons who may make modifications under section 104.
Government new clause 12—Further provision about modifications under section 104.
Government new clause 13—Notification of modifications.
New clause 23—Members of Parliament—
“(1) This section applies where—
(a) an application is made to the Judicial Commissioner for a targeted equipment interference warrant, and
(b) the warrant relates to a member of a relevant legislature.
(2) This section also applies where—
(a) an application is made to the Judicial Commissioner for a targeted examination warrant, and
(b) the warrant relates to a member of a relevant legislature.
(3) Where any conduct under this Part is likely to cover material described above, the application must contain—
(a) a statement that the conduct will cover or is likely to cover such material,
(b) An assessment of how likely it is that the material is likely to cover such material.
(4) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—
(a) there are reasonable grounds for believing that an indictable offence has been committed, and
(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and
(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(d) it is in the public interest having regard to:
(i) the public interest in the protection of privacy and the integrity of personal data,
(ii) the public interest in the integrity of communications systems and computer networks, and,
(iii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”
This new clause would ensure that applications for a targeted equipment interference warrant or targeted examination warrant in relation to Parliamentarians are granted on application only to a Judicial Commissioner, removing the role of Secretary of State and applies additional safeguards to the correspondence of parliamentarians when a warrant for hacking is sought.
New clause 24—Audit trail of equipment interference—
“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”
See amendment 387.
Amendment 178, in clause 90, page 68, line 24, leave out subsection (1)(b).
See amendment 186.
Amendment 133, page 68, line 26, after “activity” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 134, page 68, line 29, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 179, page 68, line 31, leave out subsection (1)(e).
See amendment 186.
Amendment 180, page 68, line 33, leave out subsection (1)(f).
See amendment 186.
Amendment 181, page 68, line 35, leave out subsection (1)(g).
See amendment 186.
Amendment 182, page 68, line 38, leave out subsection (1)(h).
See amendment 186.
Amendment 187, page 68, line 40, at end insert—
“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”
This amendment would ensure that all targets of hacking are properly named or otherwise identified.
Amendment 352, page 68, line 44, leave out paragraph (b).
See amendment 357.
Amendment 135, page 68, line 45, after “activity” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 136, page 68, line 47, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 353, page 69, line 1, leave out paragraph (d).
See amendment 357.
Amendment 354, page 69, line 3, leave out paragraph (e).
See amendment 357.
Amendment 188, page 69, line 4, at end insert—
“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”
This amendment would ensure that all targets of hacking are properly named or specifically identified.
Amendment 239, in clause 91, page 69, line 9, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 240, page 69, line 11, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 241, page 69, line 14, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 242, page 69, line 17, leave out subsection (3)(d).
Amendment 358, page 69, line 17, leave out paragraph (d) and insert—
“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”
See amendment 361.
Amendment 243, page 69, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 244, page 69, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 245, page 69, line 24, leave out “and”.
Amendment 246, page 69, line 25, leave out subsection (2)(b).
Amendment 247, page 69, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 248, page 69, line 33, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 249, page 69, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 250, page 69, line 38, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 251, page 69, line 43, leave out subsection (3)(d).
Amendment 252, page 69, line 46, leave out subsection (4).
Amendment 359, page 70, line 8, after “crime” insert
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
See amendment 361.
Amendment 360, page 70, line 11, at end insert—
‘(5A) A warrant may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within this section.”
See amendment 361.
Amendment 361, page 70, line 25, at end insert—
“(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—
(a) to the offence as specified under (5)(b), or
(b) to some other indictable offence which is connected with or similar to the offence as specified under (5)(b)”.
These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising equipment interference to be issued. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information. This amendment would require that a warrant only authorises conduct in relation to the offence for which the warrant was sought, or other similar offences.
Amendment 258, page 70, line 26, leave out Clause 92.
Amendment 253, in clause 93, page 71, line 21, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 254, page 71, line 23, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 255, page 71, line 25, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 256, page 71, line 28, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 257, page 71, line 31, leave out subsection (1)(d).
Amendment 382, page 71, line 31, leave out subsection (d) and insert—
“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”
See amendment 362.
Amendment 362, page 71, line 35, leave out from “include” to the end of line 36 and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
the risk to public cybersecurity.”
These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.
Amendment 363, page 71, line 40, leave out Clause 94.
Government amendments 88 to 91.
Amendment 259, page 72, line 18, leave out Clause 95.
Amendment 364, in clause 96, page 72, line 37, leave out
“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”
and insert “Judicial Commissioner”.
See amendment 383.
Amendment 365, page 72, line 38, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”.
See amendment 383.
Amendment 366, page 72, line 41, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 367, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 368, page 73, line 4, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 369, page 73, line 7, leave out paragraph (d).
See amendment 383.
Amendment 370, page 73, line 10, leave out
“law enforcement chief described in Part 1 of the table in Schedule 6”
and insert “Judicial Commissioner”.
See amendment 383.
Amendment 371, page 73, line 11, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”
See amendment 383.
Amendment 372, page 73, line 13, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 373, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 374, page 73, line 20, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 375, page 73, line 23, leave out paragraph (d).
See amendment 383.
Amendment 376, page 73, line 26, leave out subsection (3).
See amendment 383.
Amendment 261, page 73, line 26, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 377, page 73, line 32, leave out paragraphs (b) and (c).
Amendment 378, page 73, line 38, after “Where” insert
“an application for an equipment interference warrant is made by a law enforcement chief and”.
See amendment 383.
Amendment 379, page 73, line 42, leave out subsections (6) to (10).
See amendment 383.
Government amendment 92.
Amendment 380, page 74, line 15, leave out
“whether what is sought to be achieved by the warrant could reasonably be achieved by other means”
and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
the risk to public cybersecurity.”
See amendment 383.
Amendment 381, in clause 96, page 74, line 18, leave out subsections (12) and (13)
See amendment 383.
Amendment 210, in clause 97, page 74, line 40, leave out
“review the person’s conclusions as to the following matters”
and insert “determine”.
Amendment 211, page 75, line 1, leave out subsection (2).
Amendment 270, page 75, line 1, leave out from “must” to end of line 2, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 210 and 211 (which are a package).
Amendment 183, in clause 101, page 78, leave out lines 21 to 27.
See amendment 186.
Amendment 184, page 79, leave out lines 3 to 7.
See amendment 186.
Amendment 185, page 79, leave out lines 8 to 12.
See amendment 186.
Amendment 186, page 79, leave out lines 13 to 18.
These amendments refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories including equipment interference for training purposes.
Amendment 386, page 79, line 21, leave out paragraph (b) and insert—
“(b) precisely and explicitly the method and extent of the proposed intrusion and measures taken to minimise access to irrelevant and immaterial information, and
(c) in a separate “Cyber-Security Impact Assessment”,
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity, and how those risks and damage will be eliminated or corrected.”
See amendment 387.
Amendment 387, page 79, line 23, at end insert—
“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security, and
(d) in declaration with supporting evidence,
(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and
(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile.”
These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. They would introduce a requirement that all equipment interference produces a verifiable audit trail. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.
Amendment 355, page 79, leave out lines 31 to 36.
See amendment 357.
Amendment 356, page 79, leave out lines 37 to 44.
See amendment 357.
Amendment 357, page 80, leave out lines 8 to 12.
These amendments would ensure that all targets of hacking are properly named or specifically identified. Warrants may still be granted where the equipment in question belongs to or is in the possession of an individual or more than one person where the warrant is for the purpose of a single investigation or operation; or for equipment in a particular location or equipment in more than one location where for the purpose of a single investigation or operation.
Amendment 388, in clause 102, page 80, line 23, leave out “6” and insert “1”.
This specifies that hacking warrants may only last for one month.
Government amendments 93 to 96.
Amendment 149, page 82, line 1, leave out clause 104.
Government amendments 97 to 100.
Amendment 150, page 83, line 36, leave out clause 105.
Government amendments 101 to 113.
Amendment 151, page 84, line 34, leave out clause 106.
Government amendments 114 to 120.
Amendment 152, page 85, line 40, leave out clause 107.
Amendment 173, page 87, line 26, leave out clause 109.
Amendment 174, page 88, line 7, leave out clause 110.
Government amendments 121 and 122.
Amendment 175, page 88, line 35, leave out clause 111.
Amendment 176, in clause 114, page 92, line 6, leave out subsection (3)(e).
Amendment 177, page 92, line 8, leave out subsection (3)(f).
Government amendment 123.
Amendment 302, in clause 116, page 93, line 39, at end insert—
‘(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
An amendment to introduce a public interest defence for equipment interference disclosures.
Government amendment 124.
Amendment 383, in schedule 6, page 214, line 7, leave out part 2.
These amendments remove the power for law enforcement chiefs to issue equipment interference warrants on application from law enforcement officers and replace it with the power for Judicial Commissioners to issue equipment interference warrants on application from law enforcement chiefs. They also remove the power to issue equipment interference warrants from other officers listed in Part 2, Schedule 6. These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered.
Government amendments 125 and 126.
Government new clause 10.
Amendment 488, page 167, line 9, leave out clause 216.
This amendment would remove the provision for national security notices.
Government amendment 78.
Amendment 196, in clause 216, page 167, line 14, after “State”, insert
“and Investigatory Powers Commissioner consider”.
See amendment 205.
Amendment 197, page 167, line 32, after “State”, insert
“and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 79.
Amendment 489, page 167, line 35, leave out clause 217.
This amendment would remove the provision for technical capability notices.
Government amendments 80 and 81.
Amendment 198, page 168, line 9 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner consider”.
See amendment 205.
Government amendment 82.
Amendment 199, page 168, line 27 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 83.
Amendment 200, page 168, line 36 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 201, page 168, line 40 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendments 84 and 85.
Amendment 490, page 169, line 2, leave out clause 218.
Consequential amendment following deletion of national security and technical capability notices.
Amendment 202, page 169, line 6 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 203, page 169, line 8 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 86.
Amendment 204, page 169, line 20 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 205, page 169, line 34 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
National Security and Technical Capability Notices should be subject to a double lock authorisation by the Secretary of State and the Investigatory Powers Commissioner.
Government amendment 87.
Amendment 491, page 170, line 10, leave out clause 219.
Consequential amendment following deletion of national security and technical capability notices.
Amendment 492, page 170, line 38, leave out clause 220.
Consequential amendment following deletion of national security and technical capability notices.
The Solicitor General
It is a pleasure to deal with the second group of amendments. It is a large group, which some hon. Members have described to me as “unprecedented”. I would not be so bold as to say that, having served a mere six years in this place. I concede, however, that the group is considerable. That perhaps reflects the huge and legitimate interest of Members of all parties in these particular parts of the Bill.
Parts 2 and 5 of the Bill were debated at length in Public Bill Committee. The Government have listened to what was said in those debates and we have brought back a number of amendments in response. These changes will strengthen protections for parliamentarians; enhance the safeguards for targeted thematic warrants; and provide greater assurances in respect of the obligations that might be placed on communications service providers.
Before I come on to the detail of the Government amendments, let me say a few words about one of the most important issues that we will discuss in this group: the authorisation of warrants.
When the Government published the draft Bill in November last year, my right hon. Friend the Home Secretary announced the intention that warrants for the most sensitive powers available to the security and intelligence agencies would be authorised by the Secretary of State and approved by a senior independent judge. This would maintain democratic accountability and introduce a new element of judicial independence into the warrant authorising process. This double lock represents the most significant change in our lifetimes to the way in which the security and intelligence agencies exercise their vital powers. This is ground-breaking, innovative and important in striking a balance between the public interest in protecting our citizens and the interests of privacy. There is a range of views in the House on the question of authorisations, and I am sure that we will have a productive and weighty debate on these matters this evening.
The amendments tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) seek to remove the reference to judicial review principles. The House will be aware that the Joint Committee that considered the draft Bill said that it was “satisfied” with the wording of the Bill and that judicial review principles would
“afford the Judicial Commissioner a degree of flexibility.”
That flexibility is important. It provides that judicial commissioners can undertake detailed scrutiny of decisions where appropriate, but it does not oblige judges to undertake forensic scrutiny of even the most straightforward warrants, because to do so would be unnecessary and would threaten the operational agility of the security and intelligence agencies.
In our debate on the first group of amendments, we had a mini-debate—we might have strayed slightly off piste—on the language that should be used in relation to the scrutiny that we want the judicial commissioners to deploy when considering their part in the double-lock mechanism. However, I believe that the manuscript amendment provides precisely the assurance that Opposition Members were seeking in Committee and in subsequent correspondence, and I am grateful to the hon. and learned Member for Holborn and St Pancras and other Opposition Members for agreeing to it. I am also grateful to the right hon. Member for Leigh (Andy Burnham) for his involvement in these important matters. I believe that we now have an amendment that will satisfy the concerns of all hon. Members and provide the robust safeguard that we were all looking for. The wording that the parliamentary draftsmen have come up with ties in the privacy provision that we debated in the last group of amendments and puts this matter right at the heart of the Bill. We now have a robust double lock that will maintain the important distinction between the Executive and the judiciary. As I have said, this is truly ground-breaking.
I shall speak to the other Government amendments as quickly as I can, to ensure that other hon. Members can be accommodated in the debate. New clauses 9 and 13 will deliver on our commitment to strengthen the safeguards around so-called thematic warrants—that is, those targeted warrants that apply to a group of suspects rather than to an individual. They will introduce a new requirement that major modifications to warrants—adding the name of a gang member, for example—must be notified to a judicial commissioner as well as to the Secretary of State.
Amendments 97 and 54 will strictly limit the operation of modifications, making it clear that a warrant targeted at a single suspect cannot be modified to expand its scope to target several suspects. This builds on the assurances that I gave in Committee, and the provision will now be on the face of the Bill, should the amendments be accepted. New clauses 8 and 12 make it clear that modifications that engage the Wilson doctrine or legal professional privilege should be subject to the full double-lock authorisation.
Robert Neill (Bromley and Chislehurst) (Con)
I am grateful to the Solicitor General for recognising the importance not only of the Wilson doctrine but of legal professional privilege. Would he accept that Government new clause 5 ought to be capable of embracing legal professional privilege within the overarching public interest in protecting privacy? Will he also continue to work with the Bar Council and the Law Society to ensure that we monitor the practical application of the protection of legal privilege in these matters?
The Solicitor General
I am extremely grateful to the Chairman of the Justice Committee, who speaks with knowledge and experience on such matters. He will be glad to know that Bar Council representatives, whom I recently met, have kindly undertaken to come up with further proposals by which the issues that took up so much time in Committee might be resolved. I will be meeting representatives of the Law Society this very week. It is perhaps a little unfortunate that those particular proposals were not crystallised prior to today’s debate, but there will of course be more time. If clear proposals come forward—I am sure that they will—they can be subject to full, proper scrutiny in the other place.
Mr David Davis
Bluntly, I ask my hon. and learned Friend to ensure that proposals come forward whether or not the Law Society comes up with any. The erosion of legal professional privilege without any recourse to this House is the single biggest erosion of liberty in this country over the past decade and a half. If the Bill is to meet its requirements, it is vital that such reforms are found.
The Solicitor General
My right hon. Friend speaks with passion and sincere conviction on such matters. He will be glad to know that, unlike in RIPA 2000, legal professional privilege is on the face of the Bill, which is a significant improvement over previous legislation. I reassure him that the provisions in the Bill that already embrace the importance of legal professional privilege have in large measure been warmly welcomed. The question is one of getting the detail right with particular regard to those occurrences, albeit rare, when the iniquity exemption—when people are pursuing a crime, which is not covered by legal professional privilege—applies and which might come under the purview of any warrantry that is sought under the Bill’s provisions.
However, I am certainly not leaving the proposals to other agencies. I am working as hard as I can with expert bodies that have great interest and knowledge and, like my right hon. Friend, recognise the overwhelming public importance of the preservation of legal professional privilege. I am glad to say that that dialogue will continue and will allow for meaningful scrutiny and debate in the other place.
Turning to the Wilson doctrine, clause 24 of the Bill currently requires the Prime Minister to be consulted before a targeted interception or targeted examination warrant can be issued in respect of such communications. Amendments 53 and 90 will strengthen that by making it clear that the Prime Minister must agree to the interception of the parliamentarian’s communications, rather than simply be consulted.
Sir Edward Leigh (Gainsborough) (Con)
Has my hon. and learned Friend noticed my amendment 1, in which I introduce the extra safeguard that the Speaker should be consulted?
The Solicitor General
My hon. Friend has tabled that amendment in the spirit of his speech on Second Reading, which referred to the role of the Speaker. I look forward to hearing any argument that he pursues on this matter. While I can see the merit in seeking to protect the privileges of parliamentarians through the office of the Speaker, my concern is that involving the Speaker in approving a particular warrantry process or not puts us at risk of confusing Executive action with the roles of this place and of the Speaker in terms of the legislature.
The Prime Minister will be accountable to hon. Members for any decision that he or she may take on warrantry through the normal process of questions, statements or being summoned to this House following an urgent question. The procedure in relation to any decision that the Speaker might make is more difficult—the mechanism might be a point of order. However, I am unsure whether that sort of challenge to the Chair would sit well with the role of the Speaker and the position of parliamentarians. There are difficulties in involving the Speaker.
Mr David Davis
Unfortunately, I am afraid that I can give my hon. and learned Friend evidence of his account of accountability not working. When the case of the hon. Member for Brighton, Pavilion (Caroline Lucas), who is a past, and no doubt future, leader of the Green party, went to the Investigatory Powers Tribunal, the Government lawyer’s stance was that it was not a legally binding constraint on the agencies. When I put that point to the Prime Minister, he was unable to answer. It is normally the case with the Wilson doctrine that the answer comes many years later, so an argument about accountability does not stand up here.
The Solicitor General
With respect to my right hon. Friend, I think it does, because we are putting in the Bill the Prime Minister’s role in approving the warrant; what we have for the first time is a very important statutory protection. Again, let us not forget the progress we have made in getting to the position we are in today. A few years ago, some of these conventions and operations were not even avowed, although that is not the case with the Wilson doctrine. Let us pause for a moment to remember what that doctrine is all about, which is making sure that hon. Members can carry out their public functions as office holders in a free and proper way, subject to the same laws as everybody else in this country—equality before the law applies to Members of this place as much as it does to other members of the public. I am sure that debate will be developed as we hear from speakers on this group.
On technical capability notices and national security notices, we have been very clear throughout this process that we will work closely with industry to ensure that the Bill provides the strongest protections to those who may be subject to obligations under this legislation. In Committee, we heard concerns that these notices were not subject to the same strict safeguards as the authorisations of warrants. We have listened to those concerns and responded with new clause 10, which applies the full double lock to the issue of notices under part 9 of the Bill. Following further engagement with industry, we have taken steps to address further concerns, and so amendment 86 will make it clear that national security notices cannot require companies to remove encryption; amendment 87 makes it clear that national security notices will not subject companies to conflicting obligations in law; and amendments 45, 70 to 73 and 122 make it clear that warrants must be served in an appropriate manner to a person who is capable of giving effect to it. That deals with the problems that companies with an international dimension have if these things are served to an inappropriate employee—somebody who does not have the power to deal with the warrant.
We have also tabled a number of minor and technical amendments, many of which respond directly to issues raised by the Opposition and by the SNP in Committee. Others, such as amendments 92 and 126, provide important clarification on issues relating to the Independent Police Complaints Commission and the Police Investigations and Review Commissioner in Scotland.
These important changes reflect this Government’s willingness to listen to suggestions that will improve this vital piece of legislation. My right hon. Friend the Minister for Security will respond to other amendments when winding up. In the meantime, I look forward to another informed and wide-ranging debate.
Andy Burnham (Leigh) (Lab)
Labour has taken a responsible and pragmatic approach to this Bill. We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability, but equally, we know that much stronger safeguards are needed in law to protect individuals from the abuse of state power. That is the balance we have been trying to achieve.
Following Second Reading, I wrote to the Home Secretary setting out Labour’s seven substantial areas of concern, and I said that unless there was significant movement from the Government in those areas, we would be unable to support moves to put this Bill on the statute book by the December deadline. The group of amendments before us covers three of those seven issues: the double-lock process and the test to be applied by judicial commissioners; the protections for sensitive professions; and the position of trade unions with respect to this Bill. I will discuss each of those issues in turn, but I start by raising an issue that emerged in Committee.
My hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the shadow Immigration Minister, identified a potential loophole that allowed warrants to be modified after initial approval without proper scrutiny by judicial commissioners, thereby undermining the double lock. The Government have part-closed this loophole for sensitive professions, but we feel they need to go further and close it for everyone, to ensure that people cannot be added to thematic warrants by modification without the involvement of a judge. I hope that Ministers will listen to that concern and reassure us that they are open to further discussion.
I know that the judicial review test and the double lock have been discussed today, so I will not detain the House long. As Members on both sides of the House know, one of our earliest demands was that there should be independent judicial oversight of the approval of warrants, and we were pleased when the Home Secretary conceded that point some months ago. Labour has always believed that the judicial commissioner must be able to consider the substance of the Home Secretary’s decision to issue a warrant, not just the process. Put simply, it must be a double lock, not a rubber stamp.
My hon. and learned Friend has done painstaking work on this issue in Committee and outside, and we thank in particular the Minister for Security for his willingness to listen to our concerns and for the manuscript amendment tabled today by the Home Secretary. It accepts the spirit of the proposals we tabled in Committee by ensuring that judicial commissioners will have to take into account their duties under the overarching privacy clause when reviewing the Home Secretary’s decision to grant a warrant. Judicial commissioners’ decisions must therefore be taken in line with human rights concerns. They must consider whether the same result could have been achieved by other means, and whether public interest concerns are met. In short, it will require much closer scrutiny of the initial decision of the Home Secretary and, significantly, bring greater clarity than the Government’s initial judicial review test would have done. We believe that that does indeed amount to a real double lock and, I have to say, a real victory for the Opposition. I confirm that we will support the Government’s amendment tonight.
When we talk about protections for sensitive professions —lawyers, journalists and Members of Parliament—it might sound to anyone watching this debate as though we in this House were once again seeking special status for ourselves in the eyes of the law. That is why it is important that I emphasise that these are not special privileges or protections for Members of Parliament, but protections for members of the public. If someone seeks the help of an MP at a constituency advice surgery or of a lawyer, or blows the whistle to a journalist, they should be able to do so with a high degree of confidence that the conversation is confidential.
Robert Neill
Does the right hon. Gentleman accept that a point we need to make is that the privilege is not that of the lawyer, but that of the client? It is therefore entirely proper for us to emphasise that particular care should be taken when dealing with privilege, which is attracted to the client. It is not ourselves as lawyers or as Members of Parliament that we put in a privileged position; it is the person who comes to seek advice who has to have protection.
Andy Burnham
The hon. Gentleman makes a tremendously important point very well. This is about a basic protection for the public—a safeguard for the public. Also, on MPs and the Wilson doctrine, it is also a protection for our democracy that people can seek the advice of a Member of Parliament without fearing that someone else is listening. The hon. Gentleman is spot on, but I have to say that we do not feel that the Bill as it stands provides sufficient reassurance to the public that that confidentiality will be mostly respected. To be fair, the Government have moved on this point, but we believe that further work is needed, and that they need to continue to talk to the professional representative bodies. I will take each group in turn, starting with MPs.
We believe that the Bill is the right place to codify the thrust of the Wilson doctrine, but in our letter to the Home Secretary we expressed concern that the Bill required only that the Prime Minister be consulted before investigatory powers were used against MPs. We argued that the Prime Minister should personally be asked to approve any such action, and we are pleased that the Government have accepted this. I note that the Joint Committee on Human Rights, chaired by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), has proposed a further strengthening of the doctrine and a role for the Speaker, who should be notified and able to challenge a decision on intercepting the communications of a Member of Parliament. We have not yet taken a view on that proposal. It is right to debate it as the Bill progresses to the Lords, and perhaps we can return to it later.
Joanna Cherry
Bearing in mind that the protection is for parliamentarians across these islands, does the right hon. Gentleman agree that the Presiding Officers in the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly would have to be involved, not just the Speaker in this House?
Andy Burnham
That is a fair point, and the amendment tabled by my right hon. and learned Friend the Member for Camberwell and Peckham seeks to ensure that. Perhaps this is an issue that the Government need to think about. Of course the provisions should apply to Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. The point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) should be accepted.
On journalists and journalistic sources, we welcome the fact that the Government have moved to put protections originally in the codes underpinning the Bill into the measure itself. We note, however, that the National Union of Journalists believes that wider protections are still needed, and the Government should continue to work with it to get that right.
Finally, on legal privilege there has been the least progress of all. Serious concerns have been expressed by the Bar Council and the Law Society about the fact that the provisions would weaken privacy protections currently enjoyed by lawyers, but those concerns are not adequately reflected in the Bill. It is disappointing that Ministers have yet to meet the legal bodies. [Interruption.] I did not quite hear what the Solicitor General said. I am happy to give way if he wants to clarify the position.
The Solicitor General
I have met the Bar Council, and I am meeting the Law Society on Wednesday, so I can assure him that there is engagement.
Andy Burnham
My mistake; I did hear the Solicitor General say that he was meeting those bodies this week. It is a little disappointing—I am not making a petty point—as we wish we could have made more progress before this debate. As the right hon. Member for Haltemprice and Howden (Mr Davis) said, this is extremely important, and our debates would be improved if there had been more progress in this area. Nevertheless, it is clear that this is firmly on the Solicitor General’s radar, and the excellent points made by the hon. Member for Bromley and Chislehurst (Robert Neill) show that there is concern in all parts of the House about moving further to get this right. In the absence of acceptable Government amendments, amendments 139 to 141 tabled by my right hon. and learned Friend the Member for Camberwell and Peckham are a step in the right direction. If amendments were forthcoming from the Government, we would certainly support them.
Mr David Davis
This point has just occurred to me, looking at the exchange of letters between Front-Bench spokespeople on bulk collection. What the right hon. Gentleman has been saying about privilege, whether legal, parliamentary or journalistic, applies only to targeted interception, but a great deal of bulk interception is shared with our allies, the National Security Agency, and there is no carve-out for any of the protections that he has discussed. I can think of circumstances in which lawyers might be targeted by the NSA because their clients are suspects—or, indeed, irritating Members of Parliament might be targeted; I am thinking of the right hon. Gentleman. In the discussions between the Front-Bench spokespeople, when the bulk collection inquiry is progressed, that should be picked up, so that the issue is dealt with.
Andy Burnham
I do not know whether that was a compliment, but I will take it as such. The right hon. Gentleman raises an important point. To be fair to the Government, there has been movement on thematic warrants: if an MP or a journalist was to be added to a thematic warrant, there would be a judicial oversight process. The right hon. Gentleman mentions taking that principle even further and relating it to bulk data. I think that David Anderson would need to consider how practically possible that would be, but the right hon. Gentleman’s point needs to be considered.
Labour amendment 262 relates to trade unions and would amend clause 18 to ensure, in statute, that undertaking legitimate trade union activities is never in future a reason for the security services or police using investigatory powers. In recent times, we have been shining a light on this country’s past and learning more about how we have been governed and policed. Revelations about Bloody Sunday, Hillsborough, phone hacking, child sexual exploitation and other matters have all in different ways shaken people’s faith in the institutions that are there to protect us. They raise profound questions about the relationship between the state and the individual. Confronted with those uncomfortable truths about abuses of power, this House needs to provide a proper response and legislate to prevent them in the future. We need to redress the balance in favour of ordinary people and away from the Executive.
Steve Rotheram (Liverpool, Walton) (Lab)
Will my right hon. Friend join me in paying tribute to Unite, the Union of Construction, Allied Trades and Technicians and the GMB, which fought a long campaign to raise the scandal of the illegal blacklisting and secret vetting of construction workers? Can he assure the House that such a gross injustice could not be perpetrated against innocent workers again, and that his amendment would provide an absolute guarantee that legitimate trade union activities would be excluded from monitoring by the security services and the police?
Andy Burnham
I will indeed pay tribute to Unite, GMB and UCATT, which, in the past couple of months, have reached out-of-court settlements on blacklisting—a major and historic victory on their part. I will come on to explain the prime concern behind the Opposition’s amendment, and the case that most justifies our bringing it forward.
In the past, the actions of some in senior positions in politics and in the police have unfairly tarnished the reputation of today’s services and today’s policemen and women. That is precisely why it is crucial that we continue to open up on the past. Transparency is the best way of preventing lingering suspicions about past conduct from contaminating trust in today’s services, and it will help us to create a modern legal framework that better protects our essential freedoms, human rights and privacy.
One such freedom essential to the health of our democracy is trade union activity. Historically, trade unions have played a crucial role in protecting ordinary people from the abuses of Governments and mighty corporations. It is that crucial role, and the freedom of every citizen in this land to benefit from that protection, that amendment 262 seeks to enshrine in law. There will be those who claim that it is unnecessary and the product of conspiracy theorists, but I have received confirmation from the security services that, in the past—under Governments of both colours, it has to be said—trade unions have indeed been monitored. In the cold war, there may well have been grounds for fears that British trade unions were being infiltrated by foreign powers trying to subvert our democracy. That helps to explain the wariness of many Labour Members about legislation of this kind. Outside the security services, it seems that some activity went way beyond that. There is clear evidence that such monitoring was used for unjustified political and commercial reasons, breaching privacy and basic human rights. I mentioned the case of the Shrewsbury 24 on Second Reading, and I remain of the view that that is an outstanding injustice that needs to be settled.
As my hon. Friend the Member for Liverpool, Walton (Steve Rotheram) anticipated, however, I want tonight to focus on the blacklisting of construction workers, which clearly illustrates the necessity of the amendment we have tabled. We have seen the settlement of claims, as I have mentioned, against companies such as Carillion, Balfour Beatty, Costain, Keir, Laing O’Rourke, Sir Robert McAlpine, Skanska UK and Vinci. It has now been proven that those companies subscribed to central lists of workers that contained information on their political views and trade union activities. Those lists were used to vet people and deny them work. That affected the livelihoods of hundreds of people, and it was an outrageous denial of their basic human rights.
By seeking an out-of-court settlement, it would seem that the companies concerned are trying to limit reputational damage, but I do not think that the matter can be allowed to rest there. We need to understand how covertly gained police information came into the hands of a shady organisation called the Consulting Association, which compiled and managed the blacklist.
Mr Alistair Carmichael
Does the right hon. Gentleman agree that the remit of the Pitchford inquiry, which has been set up to look into the use of undercover policing, really needs to be extended to cover what went on in Scotland and other parts of the United Kingdom or we will never get the full truth of this?
Andy Burnham
That is certainly one way of addressing the concerns that I am putting on record tonight, but another would be to have a separate inquiry into blacklisting per se. Not only was it outrageous, but it is still largely not known about. Most people outside trade union circles do not know that it happened. That is why, by one means or another, there needs to be a process of inquiry about it.
We would not know about the practice were it not for the outstanding work of the Blacklist Support Group and individuals such as Dave Smith who have exposed how much of the information held on individuals appeared to emanate from police sources. For instance, the files hold detailed descriptions of the movements of a number of people at the June 1999 demonstration “Carnival Against Capital”. As a Guardian article by Dave Smith and Phil Chamberlain pointed out, it seems highly unlikely that that intelligence was the product of a site manager who just happened to be passing through London on that day.
The Blacklist Support Group referred the matter to the Independent Police Complaints Commission in 2012. I want to put on record what it found, because it is pretty shocking. Having looked into the concerns, the IPCC wrote in a letter to the Blacklist Support Group:
“The scoping also identified that it was likely that all Special Branches were involved in providing information about potential employees who were suspected of being involved in subversive activity.”
All special branches were likely to have given information that was used to compile the blacklist.
Steve Rotheram
May I expand on the point that my right hon. Friend is making? Perhaps some people outside the Chamber will not understand what subversive activities were. In those days, subversive activities included complaining about health and safety because a person was dying on a building site every single day. Does my right hon. Friend agree that that is hardly subversive activity?
Andy Burnham
My hon. Friend is absolutely right. Those were people who were trying to protect their workmates and colleagues. An individual who protested outside Fiddler’s Ferry power station near us in the north-west was trying to safeguard people’s safety at work, but they were subjected to this outrageous abuse of their rights.
Mr George Howarth
My right hon. Friend is making a very powerful case. I do not know whether he is aware of this, but when the issue first arose during the last Parliament, I took it up with the Metropolitan Police Commissioner to ask whether there was any involvement on the part of the Metropolitan police. I got a letter back not from the commissioner himself, but from a senior member of his staff, who now works for one of the agencies, flatly denying that there was any such involvement. Something was happening, as the excerpt my right hon. Friend has read out shows, yet even as recently as three or four years ago, the Metropolitan police utterly denied it.
Andy Burnham
I agree with my right hon. Friend. It is quite clear that “all Special Branches” provided information. There it is in the letter from the IPCC in 2013. I do not think that its pretty astounding confirmation has been properly followed up. As I said in response to the right hon. Member for Orkney and Shetland (Mr Carmichael), people have a right to know what information was passed by whom in the police service, who sanctioned the passing of that information to such organisations and the policy under which passing that information was justified.
This is yet another scandal from our country’s past, in which it seems that the establishment rode roughshod over the rights of ordinary people. I pay tribute to the Home Secretary for the courage she has shown in facing up to our past, but the evidence trail has not yet reached its end. This process must continue: we must continue to go wherever the evidence takes us. Such evidence is now taking us to blacklisting and, of course, to Orgreave and its aftermath. In my view, the case for inquiries into both is unanswerable. I again call on the Government to initiate those inquiries so that people can have the truth.
For tonight, we call on the Government to accept Labour’s amendment to provide protection in law for legitimate trade union activity. Had that provision been in place years ago, it could have prevented the abuses that we saw with the blacklisting of workers. If it could be agreed, such an historic move would give some recognition to the long and proud campaign for fairness in the eyes of the law that has been fought by trade unionists. It would also show a real willingness on the part of the Government to create a modern law that is as much about protecting the rights of the working person as it is about keeping us safe in the 21st century.
Sir Edward Leigh
I rise to speak to my amendment 1, which is, in clause 24, page 19, line 8, at the end to insert that where the subject of the snooping, frankly, is a Member of the House of Commons, that snooping must also involve a consultation with the Speaker of the House of Commons. The Member’s explanatory statement helpfully says:
“This amendment would require the Secretary of State to consult the Speaker before deciding to issue a warrant that applied to an MP’s communications.”
This is a small, but I believe important amendment. It is of course perfectly proper and pertinent that, as we all agree, the Secretary of State consults the Prime Minister before deciding to issue a targeted interception or examination warrant regarding an MP’s communication with a constituent or somebody else. We all understand that, and it is not controversial. However, the Prime Minister is the Queen’s chief Minister of Government and is, by its very nature, a political office holder. It goes without saying that we have complete confidence in the present Prime Minister that no such thing would happen, but we must not make permanent laws based on impermanent situations. Our conscientious Prime Minister, who I am sure is both aware of and respectful of parliamentary privilege, may be succeeded, somewhere down the line, by a man or woman who does not esteem the dearly won privileges of this House. They are not our privileges: they are not for us; they are for the protection of our democracy and of our constituents.
It may be that a future Prime Minister would be under intolerable pressure during a time of national crisis. It is not difficult to imagine that circumstances may come into play in which a future Prime Minister authorises a politically sensitive or even a politically motivated interception against an Opposition Member, or indeed against a Government Member if that Member of Parliament is opposed to the Prime Minister’s policies. We need only think of the intense debates that took place during the Vietnam war and the Iraq war. We remember that the present Leader of the Opposition had strong views about the importance of communicating with Sinn Féin at a time when that was considered intensely controversial—indeed, some at the time would have argued that it was a threat to national security. I am not defending the actions of the present Leader of the Opposition, or making any comment on them one way or another, but one can surely imagine that there may be future situations when there is intense debate on a matter of national security and a Prime Minister may be politically motivated to intercept communications between a constituent and a Member of Parliament.
I believe that it is important to uphold the exclusive cognisance of this House to regulate its own internal affairs, apart from the Government. This House is not the Government but the scrutineer of Government. To reply directly to the point the Solicitor General made, the amendment does not put MPs above the law—far from it. Our conduct is completely within the jurisdiction of normal criminal courts, and the criminal law applies to us as to anyone else. But it is vital that communications relating to our role—only to our role and to no other part of our life—as democratically elected representatives of the people, in a free country, under the Crown, be protected from Government observation and interference, just as it is vital to remove any temptation to politicise the work of the police.
Amendment 1 would solve that problem, by invoking the importance of the Speaker, an impartial office holder not beholden to any political party or indeed to the Government. You will be aware, Madam Deputy Speaker, that the office of Speaker is among the most important in the land. It ranks above all non-royal people in this realm, excepting the Prime Minister, the Lord Chancellor and the Lord President of the Council. The Speaker is endowed with his or her office by the trust placed in him by fellow Members of Parliament, and his impartiality is central to the proper functioning of Parliament. Once he has held the office of Speaker, never again can he re-enter politics—that is a clear convention of this House. He is utterly and completely impartial.
Dr Murrison
I have a great deal of sympathy for what my hon. Friend has to say, but does he share my concern that the Speaker might be seen as a rather in-house arbiter in these matters? In recent times we have seen where that leads us. Does my hon. Friend not have more confidence in the double-lock arrangement that the Front-Bench team has rightly instituted?
Sir Edward Leigh
I am perfectly happy—I think everyone in this House is—with the proposal that if the Secretary of State for the Home Department wishes to investigate communications with a Member of Parliament, the Prime Minister should always also be consulted. No one objects to that. But who appoints the Home Secretary? The Prime Minister does. They are both politicians—by their very nature, they are political animals—and members of the Executive. I have to ask my hon. Friends to look beyond the present situation; they may indeed have the utmost confidence in the present Secretary of State for the Home Department and the present Prime Minister, but they should always separate their view of those currently on the Front Bench from what might happen in the future.
All I am asking is that if the Government are taking the extreme step of intercepting communications between constituents and Members of Parliament, someone entirely non-political, namely the Speaker, should also be consulted. This is the point: he is no mere presiding officer. We do not call him “the presiding officer”, as is the case in other Assemblies and Parliaments. He is the upholder of order and the defender of the House’s privileges and immunities. I am absolutely not suggesting that he should be dragged into politics. But there is already a precedent. Have we not involved the Speaker very recently in consideration of whether amendments should be separately considered under English votes for English laws? Nobody—certainly not the Government—has suggested that that is dragging the Speaker into politics.
I am a member of the Procedure Committee, and we examined this issue in great detail. The system—I am not defending EVEL as that is not the subject of today’s debate—seems to be working fairly well. Nobody is calling the Speaker to order or complaining about his decision, but there is in a sense a double lock that seems to work quite well.
The Solicitor General
My hon. Friend makes a proper point about the Speaker’s role in English votes for English laws, and there are other certification procedures that he, I, and others know about. There is a difference, however, because that relates to the legislative process in this House, and it deals precisely with the point about exclusive cognisance and the privileges of this House in dealing with its own rules and regulations. There is therefore a difference between the points that my hon. Friend raises and involvement in an Executive decision.
Sir Edward Leigh
There may be a difference, but I do not think it is a substantive one. [Interruption.] I am delighted that you are now sitting in the Chair, Mr Speaker, because I am talking about you, which I know you always enjoy me doing.
Mr David Davis
Surely one key point is that there would be an inhibition on a Secretary of State or a Prime Minister in the process of approaching the Speaker. They may not be inhibited about talking to each other about an uncomfortable Opposition Member, or indeed an uncomfortable Government Member, but they would be inhibited about approaching the Speaker. That is not separate to what goes on in the House. The one case that we have had was that of my right hon. Friend the Member for Ashford (Damian Green), when there was an approach to the Speaker of the day, which I am afraid ended in tears.
Sir Edward Leigh
Exactly. It is an inhibition, and I presume that the Home Secretary and Prime Minister would take that extreme step only because they were convinced that this was a matter of national security. Before they took such a step, which we all agree is serious, would it do any harm to consult somebody who is obviously completely separated from politics?
Alex Chalk (Cheltenham) (Con)
Is there not an issue of accountability here? If the judgment is wrong, would it not be extremely regrettable for the Speaker to be dragged into the court of public opinion as someone who got that judgment wrong, as opposed to the Executive or the Prime Minister who could properly be hauled over the coals?
Sir Edward Leigh
I understand that example, but it can be taken to extremes. Every day of the week the Speaker makes decisions. He decides how we conduct our business and who should be called, and we could always argue that we should not give the Speaker more powers because he might make a mistake or be called to account. We are not talking about the Speaker being involved in whether we should pass a particular Bill or controversy; we are talking about a very narrow circumstance in which the Government of the day have decided to intercept the communications of a Member of Parliament. All I am suggesting is that before they take that step, they consult the Speaker.
Mr John Hayes
There are few Members of this House whom I hold in higher regard than I do my hon. Friend, but like it or not, his proposal would draw the Speaker into issues of national security. He is describing highly sensitive matters of a kind that Speakers have not historically been involved in. It would be a radical change.
Sir Edward Leigh
The Minister makes that point, but as Members of Parliament we should try to think outside the political box and our natural loyalties, and just for a moment think about what might happen in future in a time of crisis. Do we really want to codify the Wilson doctrine in legislation, and say that in future any Government—it does not matter that the Prime Minister ticks a box, because he is also a member of the Government—without any independent second guessing, can intercept those communications and act on them? I understand the Minister’s arguments and assure him that I am not trying to drag the Speaker into politics. I am trying only to protect the traditional privileges of the House. “Privileges” is the wrong word, because it conveys the impression that we are concerned about ourselves. We are not important in all this. What is important is people’s confidence in communicating with their Member of Parliament.
Mr George Howarth
The difficulty with the hon. Gentleman’s argument is that he assumes that the Prime Minister of the day, regardless of which party he is in, would take such a decision in a vacuum, but it simply could not happen that way. He would have to be satisfied first with proper legal advice that it is in the interests of national security. Secondly, he would have to be satisfied that it is both necessary and proportionate. Passing all those tests requires a lot of advice, and I doubt that any Prime Minister would take the decision lightly. Bringing any Speaker into that decision-making process means that they must be linked to that legal and security advice to satisfy themselves in the same way as the Prime Minister would have to do. I therefore cannot see the difference.
Sir Edward Leigh
I can see what the difference would be in a time of national crisis. The information will be clearly set out by the Home Secretary and the Prime Minister. I do not believe that it would be beyond the abilities of any Speaker now or in future to take an informed decision and to be convinced by the Prime Minister and the Home Secretary that the interception was not a political interference but a matter of national security.
All hon. Members agree on that—that the communications can be intercepted if it is a matter of national security—and we all agree that they should not be intercepted because it is politically expedient to do so. All I am asking is that the Speaker, who by the nature of his office does not consider political expediency, can say, “Yes. This is a matter of national security.” I do not believe that that is beyond his abilities. After all, he is ably assisted—is he not?—by the Clerk of the House and a band of parliamentary Clerks, most of whom have spent years accumulating knowledge, wisdom and experience of the ways of the House. They are not radicals or people who will take decisions lightly or wantonly. Together, they form a deposit of institutional memory, which the Prime Minister and No. 10, by the nature of their daily tasks of government and political management, can never be. They must always, necessarily, take a short-term view. That is not a criticism but the nature of the office.
Each of the privileges of this House, in addition to being daily fought for and won over the centuries, exists for a reason. Like many traditions and customs, we interfere with them at our peril. I appeal to the Minister of State, who is deeply aware of the importance of traditions and customs. We may wonder today why this or that one exists, but if we disregard them, we will soon find that the dangers they protect us from are very real.
We also may doubt the day will ever come when a Prime Minister would dare to authorise the monitoring of Members’ communications for politicised reasons, but it is therefore better to remove even the possibility of that temptation existing by simply requiring the Secretary of State to consult the Speaker. It has been said before but it is worth saying again. Nearly 375 years ago, William Lenthall reminded the sovereign that the Speaker had
“neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.”
All I am asking in amendment 1 is that that tradition be maintained. We would do well to continue to put our trust in that defender of our law and our liberties.
Joanna Cherry
The Scottish National party has tabled a significant number of amendments to parts 2 and 5, and chapter 1 of part 9, which are under discussion, but given the constraints of time I will focus my fire on only a few of them, and mainly on part 2 and the system of judicial warrantry.
The Government have put their new double-lock system of warrantry at the heart of their arguments that there are sufficient safeguards in the Bill. In the SNP, we believe that the system of warrantry is too limited in scope and seriously deficient. We have tabled extensive amendments to extend the system of judicial warrantry beyond part 2, so that it would cover warrants to obtain, retain and examine communications data and police hacking warrants. We think the nature and scope of those warrants, and the grounds on which they are granted, are very important.
Amendments 267, 268, 272 and 306 to clause 15 deal with the scope of warrants. The problem with clause 15 as currently drafted is that it permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. This is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity and that it must
“name or describe as many of those persons as is reasonably practicable”.
Our amendments would retain the capacity of a single warrant to permit the interception of multiple individuals, but require an identifiable subject matter or premises to be provided. We have tabled associated amendments to clause 27. Taken together, they would narrow the current provisions, which effectively permit a limitless number of unidentified individuals to have their communications intercepted.
It is not just the SNP who are concerned about the scope of the thematic warrants. We heard evidence in Committee from Sir Stanley Burnton, the Interception of Communications Commissioner, and from Lord Judge, the chief surveillance commissioner. Both expressed detailed concerns about the breadth of clause 15 as currently drafted. They said it was too wide and needed to be more focused. David Anderson QC, although in favour of thematic warrants, said that clause 15 as currently drafted is “considerably more permissive” than he had envisaged. There we have three very distinguished experts working in this field underlining the necessity of the amendments.
That is a real concern, because it takes us back to our old friend, or in our case our old enemy, bulk powers. If we create thematic warrants, communications intercepted under bulk powers can be trawled through thematically to look for groups of people sharing a common purpose or carrying out a particular activity. One difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people. That is just not right. It is suspicionless interference. It is not targeted and it is not focused. I urge hon. Members on both sides of the House, if they are concerned about supporting an SNP amendment, to comfort themselves with the fact that it is an amendment the necessity of which has been underlined by persons as distinguished as the Interception of Communications Commissioner, the Chief Surveillance Commissioner and the independent reviewer of terrorism.
I now turn to the grounds, set out in clause 18, on which warrants may be granted, and to SNP amendments 212 and 213. The purpose of the amendments is to remove the economic wellbeing of the UK as a separate purpose for granting a warrant and to require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour. We have tabled similar amendments to the grounds for seeking warrants in relation to communications data under parts 3 and 4, and hacking under part 5. If these amendments are not allowed, people simply will not be able to predict when surveillance powers may be used against them, because the discretion granted to the Secretary of State is so broad as to be arbitrary.
The Joint Committee on the draft Bill recommended that the Bill include a definition of national security, which, of course, is the first ground. I call on the Government, not for the first time, to produce an amendment that defines national security. The Bill is sprinkled liberally with the phrase “national security”. The Government need to tell us what they mean by that phrase, so I call on them to define it. This is not just theoretical or, as the hon. Member for North Dorset (Simon Hoare) called it, merely a law faculty debate; it is a serious issue about language being precise so that there can be some predictability. In the past, the courts have responded with considerable deference to Government claims of national security; they view them not so much as matters of law but as Executive-led policy judgments. As a legal test, therefore, “national security”, on its own, is meaningless unless the Government attempt to tell us what they mean by it.
Dr Murrison
I am listening with great interest to the hon. and learned Lady. She will be aware that the Joint Committee on the National Security Strategy has long been trying to define “national security” but has failed to come up with an answer. Will she not accept that the term must necessarily remain loose?
Joanna Cherry
No, I do not accept that. As I say, the phrase is sprinkled throughout the Bill to justify very broad and intrusive powers, and it is incumbent on the Government to explain what they mean by it. We have heard powerful speeches and interventions from Labour Members about how these loose phrases can sometimes be misinterpreted to enable individuals who have done absolutely nothing wrong, such as trade unionists going about their lawful business, to have their livelihoods and communications interfered with. So if the Government want these powers, they have to define the grounds on which they can be exercised.
That takes me to economic wellbeing. The Joint Committee on the Bill said that economic wellbeing should be defined, but the Intelligence and Security Committee went further and said that it should be subsumed within the national security definition and that otherwise it was “unnecessarily confusing and complicated”. It was basically saying that if economic harm to the wellbeing of the UK was so serious that it amounted to a threat to national security, it would be covered by clause 18(2)(a). That was the point the ISC made. We do not need a separate category.
Mr Grieve
I intend to touch on this briefly when I speak. It is right to point out that, after making that recommendation, the Committee had the opportunity to hear considerable further evidence provided by the Government, and as a result we were unanimously persuaded that keeping “economic wellbeing” as a separate category was justified. I will amplify my remarks when I speak later, but that was the conclusion we reached.
Joanna Cherry
I do not wish to quibble with the right hon. and learned Gentleman’s conclusion, but unfortunately the rest of us have not been favoured with the basis on which he and his Committee reached it. I am yet to be convinced that the “economic wellbeing” ground is a stand-alone ground that cannot be subsumed within “national security”. If the Government can convince me otherwise, or want to try, I will listen, but I have yet to be convinced, despite having sat through many days of the Bill Committee.
Another problem with the grounds relates to the lack of any “reasonable suspicion” threshold. This recurs throughout the Bill. Our amendments would insert such a requirement. At present, intrusive powers can be authorised to prevent and detect serious crime and, in the case of communications data, even just to collect tax, prevent disorder or in the interests of public safety. These general purposes, however, are left wide open to broad interpretation and abuse if one does not also require a threshold of suspicion. A requirement of reasonable suspicion, when one invokes the purpose of preventing and detecting serous crime, would have the benefit of preventing the abusive surveillance of campaigners, unionists and victims by undercover police; police surveillance of journalists’ lawful activities; and surveillance by the agencies of law-abiding non-governmental organisations and MPs. This is not fanciful. We have seen law-abiding NGOs and MPs having their correspondence and activities interfered with in recent times, so these are not just theoretical examples.
The “reasonable suspicion” threshold was recently held to be necessary by the European Court of Human Rights in a case concerning the Russian interception regime, Zakharov v. Russia, with which many hon. Members will be familiar. The Solicitor General will try to make a distinction—if we had time, we could argue about that—but there is a widely held view that the standard set by the ECHR in that case is not met by the grounds in clause 18. I therefore urge fellow hon. Members to support our amendment to clause 18 to ensure that the United Kingdom’s investigatory powers regime meets international human rights standards.
It will be clear from what I have said already that the SNP very much shares Labour’s concerns about the monitoring of legitimate trade union activity. I understand that the Home Secretary has acknowledged those concerns and given some sort of assurance to the shadow Home Secretary. However, like Labour, the SNP will require an amendment to make that absolutely clear on the face of the Bill. If Labour Members want to push their amendment to a vote this evening, we will support it.
Stephen McPartland
I shall speak to four different sets of amendments. As I said earlier, it is a difficult Bill to support, but I acknowledge the work that Ministers and the Government have done in trying to work with Government Members and Opposition Members to produce a Bill with which we can all begin to start to feel comfortable. I am not a lawyer, but amendments 147 to 152, which stand in my name, are designed to leave out clauses that provide for the modification of warrants. In my view as a non-lawyer, these changes seem, through a major modification, to have the potential to change the key components of a warrant. I wonder at what stage a new warrant should be drafted instead. How far can the warrant be modified before it needs to become a new warrant? The warrant provisions seem to be very wide ranging and very ill defined.
The next set comprises amendments 178 to 186, which try to refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories, including equipment interference for training purposes. People outside this place may not be aware of it, but when we talk about “equipment interference”, we are basically talking about hacking devices that can hack into mobile phones, computers, email systems, or the apps that people use for their banking. “Equipment interference” is a nice way of saying state-authorised hacking, which is what we are talking about here. To me, this is an incredibly intrusive power, permitting real-time surveillance, as well as access to everything we store on our digital devices, from text messages to address books, calendars and emails, along with the websites people visit, which apps they use and how they use them.
The Bill also seems to me to provide for thematic hacking warrants, which amount to general warrants to hack groups or types of individuals in the UK. Hacking is not restricted in the Bill to equipment belonging to, used by or in the possession of particular persons or organisations. Even the director of GCHQ has apparently raised concerns about the breadth of the current definitions, which could apply to the equipment of a hostile foreign intelligence service. We here might say, “So what? So be it. That’s what they’re there for”, but what would we say if those warrants allowed all employees and family members of a particular company or the people who visit a particular religious venue or who live in a particular road to be hacked? Would we still say, “So what? Should we be bothered?” This may sound unlikely, but the draft equipment interference code of practice permits the targeting of people who are “not of intelligence interest”. If that is not carte blanche, I do not know what is, because it is in effect allowing hacking of the equipment of anybody anywhere in the UK or overseas, if the agencies choose to do so.
Mr Davis Davis
I am entirely in agreement with my hon. Friend on this. He says that it might not involve hacking a whole street, but it could easily involve hacking two layers of contacts. If I call 100 people, and then the people called by those 100 people are investigated, that would be a very typical intelligence exercise, pursuing the two rings of contacts. That could involve 100,000 people, most of whom have nothing to hide but could become under permanent surveillance by the state.
Stephen McPartland
I totally agree with my right hon. Friend’s point. As a Master of Science and Technology, I, of course, have never hacked anything in my life and would never dream of doing so, but it is not a particularly difficult thing to do at the moment. Many people do not appreciate that the measures in the Bill are authorising the state hacking of equipment. Combined with other measures in the Bill, this is not just about hacking the equipment of somebody who may be of particular interest as part of a terrorist organisation; we are talking about every man, woman and child with an electronic device inside the UK. That is where my concerns arise.
Suella Fernandes (Fareham) (Con)
I am grateful to the hon. Gentleman for that explanation of his amendment, but surely there are clear limits to the powers relating to equipment interference set out in clause 91. The action needs to be necessary, proportionate and in the interests of national security, so it is really not fair to say that this is a sweeping power to which any man, woman or child could be subjected.
Stephen McPartland
I am grateful to my hon. Friend for her intervention, but the reality is that schedule 4 to the Bill will give a range of other organisations the ability to access this power if they choose to do so. For example, the Financial Conduct Authority could do so in circumstances relating to the stability of the markets. A whole variety of organisations will be able to use these powers, not just the intelligence services. Police services up and down the country already use equipment interference to target criminals, for example. A whole range of powers such as these is already being used. I appreciate that the Bill is trying to put them on a statutory footing, and I understand the need to keep people safe, but we have to balance this with resources. Let us remember 9/11 in the United States, when many different agencies and organisations had information but were not sharing it. I believe that we are getting ourselves into a situation in which we will have so much information on so many people that it will be of no value to us whatever. It will be like the internet: you can put anything in, and you get 3,000 pages back.
We need a stronger legal framework if we are going to authorise the state hacking of equipment in the United Kingdom. My amendments 187 and 188 simply seek to ensure that all targets of hacking are properly named or specified. We need a more specific legal framework. Amendments 173 to177 would eliminate the power of the Government to compel third parties to assist in carrying out equipment interference. As the Bill stands, this compelled assistance will not be subject to any judicial authorisation process. The relevant organisations will be able to turn up at a company and say, “We have this warrant, so you now have to help us to hack your devices.” The company will have no choice. Clause 114 contains strict non-disclosure provisions, which are effectively gagging orders that will prevent anyone from being able to say whether they have been involved in such procedures. The Science and Technology Committee documented widespread concerns regarding company compelled hacking and concluded that
“the industry case regarding public fear about ‘equipment interference’ is well founded.”
The draft equipment interference code of practice indicates that no company in the United Kingdom, no matter how small, is exempt from these obligations.
My amendments 196 to 205 are, like the rest, probing amendments to try to get these issues debated and to make people aware of them. They would provide that national security and technical capability notices be subject to a double-lock authorisation by the Secretary of State and the Investigatory Powers Commissioner. I appreciate that new clause 10 and other Government amendments are moving some way towards achieving that, which might make what I am about to say obsolete. I do not fully understand those amendments yet, as I am not a lawyer, as I have said.
My understanding of the Bill as it stood this morning was that only the Secretary of State had the power to authorise a retention notice, a national security notice and a technical capability notice. That was not in keeping with the rest of the Bill, which requires a judicial commissioner to be involved in the review and approval of those areas. Those notices in effect enable the Secretary of State to demand that private companies act as a facilitator, depository and provider of people’s communications. We need independent oversight, and as I have said, the Government have come some way towards establishing that, in new clause 10 and elsewhere. However, technical capability notices will have an impact on UK businesses with 10,000 or more users, in that they will require those companies to build systems to store user data for use by the intelligence agencies, the police and the Home Office. That is what is written into the code of practice.
Looking at the codes of practice, one thing that jumped out at me and which I found very difficult as a Conservative was the fact that the communications service providers—CSPs—will be subject to a technical capability notice. They will have to notify the Government of new products and services in advance of their launch in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide technical capability information on a new service. So, in English, and from a Conservative point of view, that will effectively mean that UK-based companies launching new products will now have to get permission from the state before they can go to market, in order to identify whether or not the state will require an ability to hack those products. Why on earth would a small business launch a new service here in the United Kingdom if those conditions remain in the codes of practice?
Ms Harman
The Joint Committee on Human Rights has four issues relating to this group of amendments that it would like to raise in the House and press the Minister on. The first relates to thematic warrants, and I want to follow up on the points made by the shadow Home Secretary and the shadow Immigration Minister on my own Front Bench, as well as those made by the hon. Member for Stevenage (Stephen McPartland) and the hon. and learned Member for Edinburgh South West (Joanna Cherry).
Our starting point is that we must remember that thematic warrants give enormous powers. Those who are authorised have the wide-ranging powers to read someone’s emails, which could include a report sent by a hospital about a medical condition, to listen to their phone calls, to see to whom they have been making calls, to hack their mobile phone and turn it into a listening device, and to look at all their information, including from their bank. The powers are very wide ranging. Such warrants are supposed to be targeted, so I urge the Minister to recognise the feeling across the House that powers are needed to make us safe, but that the Government have not yet sufficiently delineated and narrowed the circumstances in which they should be used. I urge the Government to talk to the Opposition Front-Bench team, their Back Benchers and the SNP to make the targeted powers more targeted.
Mr Winnick
What my right hon. and learned Friend says sums up the position. The Opposition Front-Bench team has managed to negotiate concessions from the Government. I accept their good intentions—the Opposition Front Bench—but the fact is that the powers that the Bill will give the security authorities are unacceptable despite all the concessions, which is a good reason for voting against Third Reading.
Ms Harman
Let us see whether the Minister and the Government will recognise that we are all trying to get the same thing here. We are trying not only to keep the public safe, but to protect privacy. However, we do that—my hon. Friend will recognise this—in the knowledge that the security services do get tempted to overreach their powers. As night follows day, that is what happens. There are so many examples, after which people think, “How on earth could that ever happen?” It happens because when the security services have powers, they get tempted to overreach them. That is why safeguards and narrow definitions are so important. For example, I was subject to security service surveillance, not because I was subversive but because I was fighting for human rights, women’s rights and workers’ rights. The point is that if they can do it, they will unless there is proper delineation, so I add my voice to those who argue for a narrower definition of thematic powers.
I also highlight the concerns of the Joint Committee on Human Rights to those who query the point about major modifications. The Government have gone such a long way to ensure that warrants are properly issued, so why are they driving a coach and horses through the proposal by saying, “After the warrant has been issued, if you feel like it, you can have a major modification”? Trust me, such modifications will not narrow the scope of warrants, they will only widen them. The Government have moved to an extent and have said that major modifications will be notified to the judicial commissioners, but it is not good enough just to tell them; there needs to be a proper approval process. The Government should look again at the proposal.
As for legal professional privilege and the constitutional issues that we should bear in mind when thinking about what are described as privileges, we must be extremely careful with such areas. Lawyers are able to hold the Government to account and that is called the rule of law. We do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with those on the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that legal professional privilege is properly sorted out.
Turning to my main point, I am sorry that the hon. Member for Gainsborough (Sir Edward Leigh) is not currently in the Chamber because I largely agree with him, but the Joint Committee on Human Rights has a better way of dealing with the matter. What we need to remember, as MPs, is that this is not just about our constituents being able to come to talk to us confidentially, although we should absolutely defend that. Let me just give one example on that. I had MI6 in my constituency and the cleaners there were about to be privatised, and then sacked or made redundant. They lived in my constituency but they had signed the Official Secrets Act and been told that they were to talk to nobody and were not allowed to be in a union. They came to me very upset, with one of them crying. They said, “We don’t know whether we can speak to you.” I said, “You can speak to me.” They then said, “We think that telling you what we are going to tell you is against the law.” I said, “It doesn’t matter what you are going to tell me. Your legal right, as my constituents, to tell me something that I need to know trumps everything.” They then said that they were going to be made redundant, and so I went along to see someone—I believe it was the director general of MI6—handily taking with me the then deputy general secretary of the Transport and General Workers Union, my hon. Friend the Member for Birmingham, Erdington (Jack Dromey). We got them all redundancy payments and that was sorted out, but I do not want to digress.
I think that the right of individuals to speak to their MP is important, but we face an even bigger constitutional issue, which relates to the fact that we are here not just to listen to what our constituents say, but to hold the Government to account. They are the Executive, and so the idea that the Executive has the power to hack into the emails and listen to the phones of those who are supposed to be holding them to account—to do all of this—offers a big prospect of the Executive abusing their power and undermining the legislature’s ability to hold them to account. The person in pole position to defend the importance of the legislature holding the Government to account is not the Prime Minister, who is the pinnacle of the Executive. We are here to hold the Prime Minister to account.
I appreciate that the Minister has said, “Make the Prime Minister consent to all our emails being hacked, all our phones being listened to and everything else”, but that gives me no reassurance at all, because the Prime Minister is the wrong person for this. We have gone higher up the tree, but we have gone up the wrong tree, because the person who is there to protect us in doing our job of holding the Government to account, including the Prime Minister, is the Speaker. That was recognised in relation to the situation of the right hon. Member for Ashford (Damian Green) when there was the question of the warrant being issued, so this is not unprecedented—the recognition that it is the Speaker who has to protect our rights to hold the Executive to account, which is what we are actually here for.
My Committee discussed this issue at great length. We do not suggest that we make the Speaker an arm of the state and make him start looking at warrants for all of us, but we go further than the hon. Member for Gainsborough, who says that the Speaker should be notified. We say that the Speaker should be notified sufficiently well in advance that if he or she feels that it is right to do so, they can go to be heard by the judicial commissioner to make their views known, and so they can have an intervention in the process. I am certain that if it was known that the Speaker would be notified and have the opportunity to speak about it to the judicial commissioner, that would make the security services much more cautious before they actually went for warrants to intercept all the communications that we are having.
Mr John Hayes
I could make two points about what the right hon. and learned Lady said. She says that the Speaker should be involved but not implicated, but I do not see how the Speaker would not be implicated and become an “arm of the state”—that is not a phrase I would have used, but she used it. The Speaker would by necessity become implicated because he would have to know the grounds on which the Prime Minister or others were acting. I do not really understand how she can claim that the Speaker can be involved but not implicated.
Ms Harman
It is true that we are sending part of the process to the Speaker, but we are not giving them the power to authorise. It would be wrong to make the Speaker be part of the authorising process—someone who applies for the warrant, or someone who, like the judicial commissioner, has to authorise the warrant. What we are talking about is notifying the Speaker, but in sufficient time so that if they notice that it is becoming very widespread, they have the opportunity to go before the judicial commissioner and say, “Look, this is going on too widely.”
Ms Harman
No, I think the Speaker would have to know the basis of the application if they wanted to; otherwise, how could they go before the judicial commissioner and say it was unacceptable? If people say, “Goodness me! That would be telling the Speaker information that would be useful in the hands of Daesh or al-Shabaab,” we would be in trouble anyway if the Speaker were the wrong sort of person to have it. I take a slightly different approach from the hon. Member for Gainsborough. He postulated the issue as politics, which is the Government and the Prime Minister, versus non-politics, which is the Speaker. It is not politics versus non-politics; it is the legislature versus the Executive. That is how we should think about it.
Ms Harman
I will, but I have a feeling that, sadly, I will disagree with my right hon. Friend, because I heard his intervention earlier and think that he too is barking up the wrong tree. To find myself barking up the same tree as the hon. Member for Gainsborough is a very sorry state of affairs, but I have the hon. Member for Stevenage (Stephen McPartland) on my side.
Mr Howarth
It is typical of my right hon. and learned Friend to get her defence in before hearing the attack. She has been a Law Officer, and when she was Solicitor General I had every confidence in her to be able to sort out the legal advice she gave as Solicitor General from whatever political position she might have taken. Why would she doubt that a Prime Minister could do the same?
Ms Harman
Because the Prime Minister is the Executive, and we need the separation of powers and the balance of powers. I disagreed with the hon. Member for Gainsborough when he was talking about what a great guy the Prime Minister is, so it is not a problem with him, but it might be with the next one. I am on my fifth Prime Minister now and they all have something in common: they regard being held to account as a bit of a nuisance. They do not welcome scrutiny—it is just the nature of the beast. We have to take that into account and accept the fact that, for the rule of law, we have to protect lawyers; for freedom of speech and expression, we have to protect journalism; and for holding the Executive to account, we must protect our rights in this House.
The Solicitor General
I am grateful to one of my predecessors for allowing me to intervene. What if, in a hearing, the Speaker agreed with the application and said, “Yes, go ahead—apply for the warrant. We don’t have any objection to it.”? How would a Member of Parliament hold the Speaker to account for a decision that affected them?
Ms Harman
The point is that the system has accountability for the Home Secretary for issuing the warrant through the judicial commissioner. We are talking about additional protection by way of the Speaker. The Speaker would not be supporting an application; the Speaker would simply be notified, and if they had no objection, it would go through and they would have nothing to do with it—but the Speaker would have knowledge. That is true: the Speaker would have knowledge of it.
In a difficult situation, how do we make sure that we do not put all our rights as a legislature into the hands of the Executive? I appreciate that the Government have tried to work out ways to strengthen the safeguards, but the issue is not just the strength of the safeguards; it is the appropriateness of them. The Prime Minister is not an appropriate safeguard to protect the rights of us in this House to hold him to account. I simply ask the Government to look again.
I congratulate the Government, the Labour and SNP Front Benchers and Back Benchers for working constructively on this. Ultimately, we all want the same thing: we want to be able to walk the streets safely and sleep safely in our beds, but not have the Executive tempted to abuse their power.
Mr Grieve
It is a pleasure to follow the right hon. and learned Member for Camberwell and Peckham (Ms Harman). I shall resist being dragged away from the specific issues on which the ISC has tabled amendments. However, the Government have moved substantially on some key issues, providing greater protection, for which we should be grateful. On the point made by the right hon. and learned Lady, I confess that I find the idea that the Speaker could provide the necessary safeguard, when one looks at the surrounding circumstances, difficult to follow. Ultimately, the double-lock mechanism provides far greater protection. We have to accept that there are scrutiny and oversight mechanisms in place that mean that if this became a common issue, it would surface properly in our system, with both the Interception of Communications Commissioner and, ultimately, the ISC.
I understand the problem that the right hon. and learned Lady has raised. I am not unsympathetic to her anxieties, which have also been expressed by my hon. Friend the Member for Stevenage (Stephen McPartland). However, I do not see how the mechanism that has been proposed and which involves the Speaker would, in practice, provide the safeguard that the right hon. and learned Lady seeks.
Amendment 25 was tabled by members of the ISC and deals with thematic warrants, on which there has been quite a lot of discussion. I have absolutely no doubt that thematic warrants have the potential to intrude into the privacy of a great many people. In the ISC report on the draft Bill, we recommended that that greater intrusion should be balanced and constrained, and suggested that those warrants should be limited in duration to the period for which they could be authorised. We then took considerably more evidence from the agencies on thematic warrants, and they argued persuasively that if thematic warrants were issued for a shorter time, there would not be sufficient time for the operational benefits of the warrant to become apparent before they had to apply for it to be renewed. We recognised that the Secretary of State and the commissioner would therefore have insufficient information on which to assess necessity and proportionality.
We therefore accept that limiting the duration of a thematic warrant is not the most effective way to constrain it. Nevertheless, we remain of the view that clause 15 as currently worded is a very extensive power indeed. Subsection (2) makes it clear that a targeted interception warrant is turned into a thematic warrant if it can relate to
“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”.
Giving that its ordinary English meaning, it immediately becomes apparent that the scope is potentially enormous. However, I want to make it quite clear that we have not seen any examples of that power being misused in any way, which presents the House with a challenge. To try to meet that challenge, the Committee’s suggestion, after reflection, is that it might be possible to include an additional constraint by removing the word “or” and adding “and” after the words, “sharing a common purpose”, to try to narrow the scope of the provision. That is why amendment 25 was phrased in that way.
Since then, as often happens in dialogue between the Committee and the agencies, we have received further information. I saw persuasive information this morning that suggested that if we adopted that approach, it would have the unintended consequence of making perfectly legitimate operations by the agencies impossible, and would place a great burden on them, because the use of a straight, targeted warrant based on the particular person or organisation, or a single set of premises, could not meet the necessity and proportionality test of having to do something further. I tabled this probing amendment in order to contribute to the debate, but I still take the view that there is an issue here that the Government need to consider carefully. It crossed my mind as I listened to the various submissions that one possible route might be the creation of a protocol to be used by the agencies—one that could be seen by the Intelligence and Security Committee and that would provide reassurance that the wide scope of the wording could not be open to abuse.
The point was perfectly reasonably made to me—I think by the Home Secretary—that the idea that the Interception of Communications Commissioner would tolerate an abuse that went outside the necessity and proportionality test was, in practice, rather unlikely, but the issue cannot simply be ignored. Something more is needed, because on the plain wording of the statute, the scope that “common purpose” and “a particular activity” allow seems excessive. There must be some constraint, and I leave it to the ingenuity and common sense of the Ministers to come up with a solution to this real problem.
The Solicitor General
I think my right hon. and learned Friend can see the problem: if we limit the provision too much—to “common purpose”—we might end up being able to deal only with conspiracy-type offences, as opposed to individual ones. We are trying to be very careful as to the wording, and it certainly is not the Government’s intention to do anything by sleight of hand to create a definition that would be unacceptably wide—far from it.
Mr Grieve
I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.
Mr John Hayes
Since my right hon. and learned Friend is inviting me to employ my ingenuity, I will try to do so. This is, in essence, about proportionality. We had quite a lot of debate earlier about necessity, but proportionality matters too. In determining what is reasonable—
Mr Speaker
Order. I wish to listen to the mellifluous tones of the right hon. Gentleman, as some Members do, and people listening elsewhere might conceivably wish to hear his sonorous tones. We would be assisted if he faced the House.
Mr Hayes
I think this is about proportionality. The answer to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is that yes, of course, in establishing the character of the proportionality and therefore the range he described, we may need to think about the sort of protocol he set out.
Mr Grieve
I am grateful to the Minister, and I leave the matter there.
I turn now to amendments 19, 20 and 21, which deal with the renewal of warrants. They may appear somewhat complicated, but they deal with a very simple issue. Warrants for interception last for up to six months. Under clause 29, the warrant can be extended by a further six months at any time before the original warrant expires. That creates a loophole because it would theoretically allow for a warrant to be renewed immediately after it was issued, thereby permitting interception for 12 months. That is clearly not what the Bill intends. The Secretary of State might well argue—logically—that the commissioner would never approve such a renewal, and that she would not either, but this is nevertheless a loophole that can and should be closed, and these amendments would ensure that it is. I hope very much that the Government can accept them.
I should mention that the amendments in my name relate only to warrants for interception and bulk interception. I would be grateful if the Minister could assure the House that, if the Government accept my amendments, that acceptance will be extended to other consequential amendments of a like character, to ensure that the power cannot be abused elsewhere.
Amendment 16 relates to clause 45 and interception in accordance with overseas requests. The clause gives effect to the European Union’s convention on mutual assistance on criminal matters and permits an overseas authority to request the support of the United Kingdom in undertaking the interception of communications. Curiously, and probably accidentally, it does not repeat the protection that exists in the Regulation of Investigatory Powers Act 2000, which ensures that requests can be made only where a person being intercepted will be outside the United Kingdom. That seems to us be another loophole that ought to be dealt with. Although the Government had indicated that it could be dealt with in secondary legislation, the Intelligence and Security Committee do not consider that to be satisfactory. It is far too important an issue to be left to secondary legislation; it should be dealt with in the Bill. If our amendment is accepted, the matter can be resolved without more ado.
Finally, may I touch on an issue that has been raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, namely economic wellbeing? When the Intelligence and Security Committee first came to consider the issue as a subset of national security in our initial evidence-taking sittings, we came to the conclusion that it ought to be possible to remove economic wellbeing as a criterion altogether. That is why we made the initial recommendation that economic wellbeing, so far as it is relevant to national security and relates to people outside the British islands, be removed from the Bill as grounds for interception. We took the view that it could all be safely contained in the subset of national security. After we published our report, the Government provided us, through the agencies, with additional evidence regarding their reasoning for including it as a separate ground. They also provided us with a number of examples of where it was being or might be used, which illustrated areas where it was useful to have it as a separate category.
Mr George Howarth
Although I am conscious that the right hon. and learned Gentleman will not, for obvious reasons, be able to go into detail on all of the examples that were given, one thing that can be avowed under this particular rubric is critical national infrastructure, which is an obvious area where the public and the state need to be protected.
Mr Grieve
The right hon. Gentleman is absolutely right. The consequence of damaging national infrastructure would be to cause a severe economic shock to the United Kingdom. At the end of the day, the most persuasive argument of the lot was that listing economic wellbeing separately added transparency as to the purposes for which an investigatory power was being sought. We came to the conclusion that it would probably assist the judicial commissioners in their consideration of the necessity and proportionality of the warrant, precisely because it highlighted that it fell within a category in which economic wellbeing was present; it was therefore in practice likely to be subject to very detailed scrutiny. For all those reasons, we did not table a further amendment on that point.
Mr Alistair Carmichael
Given the lateness of the hour and the number of right hon. and hon. Members still wishing to catch your eye, Mr Speaker, I hope to confine my remarks principally to those amendments that stand in my name, but I would also like to pick up on one or two more general points.
Mr David Davis
It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael).
The Bill is undoubtedly necessary, in that it was preceded by interception and surveillance based on something like 66 different legal bases, and that was incomprehensible to almost anybody. I had hoped that the Bill would cover all the previous legal bases, but it does not do so. There are still matters that are not covered by the Bill. For example, the Intelligence Services Act 1994 is still avowed in the Bill, and is used as a mechanism for which it was not intended. I know that because I took that Bill through the House. I know what it was intended to do, and it was nothing like what it is now used for.
Since I have a very limited time, I will press on, but let me say this. Listening to most of the speeches on this group of amendments, I agreed with virtually all of them, particularly the points about modification. The right hon. and learned Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Gainsborough (Sir Edward Leigh) made a very good point—whatever the mechanism—about the flaws in the current Wilson doctrine, as now laid down in the Bill. There are therefore many changes yet to come, and I imagine they will come in the Lords, or indeed in the law courts.
In the next few minutes, I will focus on the amendments in my name, principally amendments 208 to 211, which deal with the issue of the so-called double lock. Until the change proposed today, it was more like a double latchkey because it was not really as strong as it was represented to be.
Before I go into that matter, I should tell the House that I take the view that the whole interception strategy used by this country is, in any event, flawed. We are virtually the only serious country in the world that does not use intercept evidence in court. The arguments made by the Government and the agencies are ones that could equally be made anywhere in the world. No other authority follows that. The fact that interception evidence is not used in court is one of the reasons why rather sloppy legal disciplines apply to the use of interception, particularly relying on the Home Secretary to authorise interceptions.
Now, there are practical, principled and political reasons, as well as reasons of accountability, for that being wrong, full stop. The practical reason is that the Home Secretary has admitted to authorising about 2,500 of these things a year. That is 10 a day—not at most, but on average. On Second Reading, I asked her to tell us how long she took over any of them, but she refused and sidestepped the question. When this situation became public, after the Anderson report, I had letters from policemen who were involved in the creation of warrants who said that it was simply impossible and that 10 a day could not be done—a judge could not do 10 a day. That is the first problem.
The second problem is that we take our judgment from the current Home Secretary. She is very unusual. She has been in office for six years. That is incredibly unusual, and a great reflection on her. But a typical Home Secretary is not there for six years. I was shadow Home Secretary for five years and faced four different Home Secretaries—one and a half years apiece, roughly. What are we looking at, then? We will have someone who has typically been in office for a year or so making really serious judgments in a real hurry. That is not the way to make the sort of balanced judgments that we expect when we are balancing the privacy of our citizens on the one hand and their life and security on the other.
The second reason is one of principle. I take the view, as did David Anderson, that it is perfectly proper for Ministers of the Crown to approve anything that would involve a foreign intercept, let us say, that would create a political problem for the country. I see no argument whatever, other than the vestiges of royal prerogative, why Ministers should make judgments about warrants brought against citizens of this country. I can see nothing that justifies that. Our greatest ally, America, views it with horror. It causes us problems with American companies when those warrants are presented. America uses a solely legal process, which would be my preference.
The arguments on accountability are frankly laughable. I know of no Minister who has stood at that Dispatch Box and defended the issue or non-issue of a warrant—not one—and it is arguably not legal. The argument put in Committee, I think by the Minister of State, was that Ministers are accountable to the Intelligence and Security Committee. The current members of that Committee include some of my oldest and dearest political friends, but I have to tell the House that I would not trust a Committee that had to be nominated by the Prime Minister, that met in secret and whose reports were redacted to hold the Executive to account. I could go into the history. It missed the dodgy dossier, the torture and the mass surveillance, and got 7/7 wrong. It is not a Committee we can rely on for accountability until it has proved itself over many more years.
A politician should not sign these warrants off. We are not going to win that argument today, so what is the next best step? It is that a judicial process, based on the evidence—always, not optionally—be the check on the issue of these warrants. My preference is that that should happen before the Home Secretary sees them, not after. That might cut 2,500 down to 2,000, and make things a little more practical. The simple truth is it would be a better way in any well-designed system.
My amendments aim to improve the Bill in that regard. The Government have come up with a manuscript amendment that the former DPP, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), says he thinks is acceptable. Until I have taken advice I cannot make a judgment on that, but for that reason, I will not press my amendments today. But I say to Members on the Front Bench that if their arguments on this issue do not stand up they will either collapse in the Lords or they will collapse in the law courts—one or the other. That is pretty certain.
A number of other issues have been raised today. Those include legal privilege, which as I say I think is the most important corrosion that is going on. We have heard about the Wilson doctrine, and about journalists and trade unions. It is now a wider issue. One thing that has come up in the past few years has been the misbehaviour of police forces and agencies with respect to demonstrators—the legitimate, proper and democratic operations of the Green movement, for example; there is also the blacklisting that the right hon. Member for Leigh (Andy Burnham) referred to. All those things need to be dealt with, and if the privacy guidance and clauses that are effectively built into the Bill do not do that, we must find a way to ensure that we do not just solve the problems of history, but that we solve problems for the future.
Mr Speaker
I will call Mr Cox briefly, but I wish to call the Minister no later than 10.50 pm.
Mr Cox
I shall be very brief, Mr Speaker, and I am grateful to you for calling me at this late hour. I wish to address clause 25 and legal professional privilege. In what circumstances, other than the iniquity exception, will legal professional privilege be overridden? In introducing his remarks, the Minister said, I think, that there was some margin where legal professional privilege could be overridden, even where the iniquity exception did not apply. That would be a radical and fundamental change to the legal protection given to the privilege of those conversing with and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the Minister’s mind, and how would that square with current legal authority on the subject?
Mr John Hayes
I only hope that your earlier remarks about my style, Mr Speaker, can be matched by my substance.
Let me deal with the last contribution first. My hon. and learned Friend the Solicitor General made it clear that these are matters of continuing consideration, and further discussions are to be held. My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) is right to say that we have not yet got to where we want to be, but I understand the weight and significance of his remark about limits on privilege, which will certainly be included in any consideration that we make following those discussions. I do not want to anticipate those discussions tonight, but, as the shadow Secretary of State recommended, we will engage in them without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect legal privilege.
A number of Members on both sides of the House emphasised the importance of the Bill per se. It is important because it provides law enforcement and security and intelligence agencies with the powers they need to keep us safe, and it does so in a way that makes those powers transparent, while also adding to the checks and balances that are vital in the defence of private interest. It therefore radically overhauls the way in which such powers are authorised and overseen, in particular through the introduction of the double lock for the most sensitive powers. This is a radical change—perhaps the most radical change of modern times in these matters.
The Bill also ensures that these powers are fit for the digital age. As the Chair of the ISC, and others, have said, much of what is done now arises as a result of a series of pieces of legislation that I suppose one could call reactive. They were consequent on the need to provide those who are missioned to protect us with what they require to do so. The Bill draws those powers together and makes them more comprehensible and transparent, which adds to the oversight and safeguards that make up the checks and balances I have described. This is an important Bill, and it is therefore important that we get it right.
That brings me to my second substantial point, which is about the spirit of our consideration. This debate has been conducted in a way that I think does credit to this House, and that is largely—it is unusual to hear a Minister say this, so I wish to emphasise it in the style that you recommended earlier, Mr Speaker—due to the Opposition. The Opposition make choices about how they scrutinise the Government, how they hold the Government to account, and how they deal with legislation on the Floor of the House and in Committee. Those judgments are fundamentally important, not only for the health of the House and our democracy, but for the interests of our people. The Opposition and the Government have worked together on the Bill. If that causes pain to the right hon. Member for Orkney and Shetland (Mr Carmichael), so be it, because if we end up with a Bill that is better than it started—and I believe we will end up with a Bill that is considerably better—I take the view that we have done our job as well as we could reasonably be expected to do it.
To that end, as we have said a number of times this evening, we continue to look at these matters. Clearly, the House of Lords will want its say—it is right that it should—and will contribute to further scrutiny, but the spirit that has imbued all we have done until now is important in a Bill that, frankly, any Government of any colour would have introduced, not just because there is a sunset clause on previous legislation, but because the Government know that it is necessary for the powers to be updated so that they are fit for purpose, and for the safeguards to be updated in accordance with that.
Let me deal with some of the specifics—I want to save sufficient time to deal with the salient issue of trade unions, which the shadow Secretary of State spoke about with such passion. Modifications were mentioned by both Opposition and Government Members. It is important to emphasise that the Government have considered the concerns raised in Committee—that point was made by my hon. Friend the Member for Stevenage (Stephen McPartland), Opposition Front Benchers and others.
As a result, we have introduced a number of significant amendments to make it clear that a warrant against a single person cannot be modified into a thematic warrant; to require all major modifications to be notified to a judicial commissioner; and to ensure that the Wilson doctrine and legal professional practice safeguards apply to urgent modifications, so that the double lock, with all that that suggests, applies too.
Those amendments are responses to matters raised in Committee, to ensure that the warranting system is consistent. I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow. We have made those changes but, as I have said, we are happy to consider those matters carefully—I have heard what has been said tonight by Members on both sides of the House about what more might be done.
The hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others have made the argument repeatedly that more should be stated in the Bill. That is what the manuscript amendment does. On that basis, I am grateful for the comments made by the shadow Secretary of State and the shadow Minister in welcoming the amendment.
My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled amendments on behalf of the Intelligence and Security Committee. Amendments 15 to 17 would add another condition to clause 45, which provides for circumstances in which a telecommunications operator may intercept communications in response to a request made by the international agreement. The additional condition would require that interception must be for the purpose of obtaining information about the communications of people who are known or believed to be outside the United Kingdom. That amendment would replicate the current position in RIPA and, I agree, would provide valuable assurances. As drafted, the amendment contains minor, technical deficiencies, and for that reason, as my right hon. and learned Friend will understand, we will not accept it.
Mr Speaker
Order. I know the Minister of State is greatly enjoying his oration, but I am conscious of the fact that the clock in front of him is not functioning, and I want him to know two things: first, that he should face the House, as we continually exhort him to do; and, secondly, that he has a further seven minutes in which to excite the House.
Mr Hayes
Seven minutes of pure joy, Mr Speaker.
The Government will bring back further amendments to do what my right hon. and learned Friend intends.
Amendments 19 to 23, also tabled on behalf of the Intelligence and Security Committee, seek to prohibit a targeted or bulk interception warrant being renewed for more than 30 days. I do not foresee any circumstance where such a renewal application would be approved by the Secretary of State or judicial commissioner, but this is another matter that I agree could be clearer in the Bill. As with the previous amendment, we will revisit this and table an amendment in the other place.
I am less convinced by the argument my right hon. and learned Friend makes on amendment 25. The amendment would prohibit warrants being sought against suspects who are carrying out the same activity but who may not share a common purpose. In my judgment, a restriction of this kind would have a material impact on current operations. It would, for example, prohibit the targeting of an online forum that is used predominantly—but not exclusively—by child abusers, because the agency could not be certain that everyone accessing the forum was doing so for a common purpose. I have profound reservations about that amendment. I understand the sense of it and I understand why it has been tabled, but I do not think the Government can accept it. I do not want to give the impression that the Government accept any amendment, regardless of what we think about it. That is not our style, however conciliatory we might be.
Mr Grieve
I did not quite follow what my right hon. Friend meant by that. I exhorted him to give the matter a little further thought and suggested there might be some ways in which it could be dealt with. I very much hope his answer was not suggesting that he was ruling that out, because that might place me in the position of wanting to put the amendment to the House.
Mr Hayes
“Very much thought” is my middle name. Actually, that is several middle names, isn’t it, Mr Speaker? I will of course do that. Indeed, I thought the point my right hon. and learned Friend made about ways in which we could achieve what he sets out to do was well made, as I said in an earlier intervention.
Power is legitimised only by the means by which those who exercise it are held to account. The health of our open society relies on the acceptance that those with whom we differ should be free to make their case, campaign or crusade. The Labour Opposition tabled an amendment on trade unions, and I want to be crystal clear about our response to it: it would neither be proportionate nor lawful for the security or intelligence agencies to investigate legitimate trade union activity. However, there are good reasons for seeking to put the matter beyond doubt. That is what amendment 262 seeks to do.
I know that this is a matter of profound concern to the Labour party, but again let me be crystal clear: it is a matter of profound concern to me, too. Trade unions make a vital contribution to the free society I mentioned a moment ago. Working people would be considerably worse off if it were not for the activities of trade unions through the ages. My father was a shop steward, my grandfather was the chairman of his union branch and I am proud to be a member of a trade union myself.
Let me do something else that is rarely done in this House. I have already praised the Opposition and commended the way they have gone about their scrutiny of the Government’s proposals; now I am going to accept the amendment that stands in the name of the Opposition.
Gavin Robinson
I am concerned about the terminology used in amendment 262. It refers to the British Islands, which include the Isle of Man and the Channel Islands. If the Minister accepts the amendment, are we legislating outwith our jurisdiction?
Mr Hayes
Notwithstanding that technical point, which I will happily deal with after the debate—I am grateful to the hon. Gentleman for making it—I will certainly accept what the Opposition have proposed as a matter of principle. It seems absolutely right that they have brought it to the House’s attention, and they can perfectly properly claim it as a victory, because I am persuaded of the need to do this. It was not in the original Bill, but it will be in the Bill as it goes forward. In that spirit and that mood, it is vital to understand that the Bill is in our national interest and there to promote and preserve the common good. It is therefore right that it make further progress.
Andy Burnham
The Minister’s comments at the Dispatch Box will have given hope to thousands of trade unionists in this country. Their legitimate role has been properly recognised by him at the Dispatch Box—long may that spirit continue from the Government Benches!
“The chairman, or a deputy chairman of the Independent Police Complaints Commission | A member (other than the chair or a deputy chairman) of the Independent Police Complaints Commission who is designated by the chairman for the purpose. | A person designated under paragraph 19(2) of the Schedule 3 to the Police Reform Act 2002 to take charge of, or to assist with, the investigation to which the warrant under section 96(1) relates (or would relate if issued).” |
Investigatory Powers Bill
Tuesday 7th June 2016
(8 years, 8 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 7 June 2016 - (7 Jun 2016)
16:13 - The House divided: - Ayes: 66 / Noes: 285 - Question accordingly negatived.
17:59 - The House divided: - Ayes: 68 / Noes: 285 - Question accordingly negatived.
18:12 - The House divided: - Ayes: 69 / Noes: 282 - Question accordingly negatived.
19:00 - The House divided: - Ayes: 444 / Noes: 69 - Question accordingly agreed to.
Anne McLaughlin (Glasgow North East) (SNP)
I beg to move amendment 390, page 95, line 27, leave out clause 119.
Mr Speaker
With this it will be convenient to discuss the following:
Amendment 391, page 96, line 36, leave out clause 120.
Amendment 392, page 97, line 15, leave out clause 121.
Amendment 393, page 98, line 20, leave out clause 122.
Amendment 394, page 98, line 38, leave out clause 123.
Amendment 275, in clause 123, page 99, line 10, leave out from “must” to end of line 11, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners.
Amendment 395, page 99, line 19, leave out clause 124.
Amendment 396, page 99, line 24, leave out clause 125.
Amendment 9, in clause 125, page 99, line 33, leave out subsection (4) and insert—
“(4) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to provide for a designated list of operational purposes, such that only a purpose on that list may be specified in a warrant relating to bulk powers.
Amendment 10, page 99, line 37, leave out from “issued” to end of line 39 and insert
“are specified in the list mentioned in subsection (4).
(5A) An operational purpose may be specified in the list mentioned in subsection (4) only with the approval of the Secretary of State.
(5B) The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121 subsections (1)(b) or (2).”
To make clear that the Secretary of State must approve all operational purposes specified on the list.
Amendment 11, page 99, line 39, at end insert—
“(5C) The list of operational purposes mentioned in subsection (4) must be reviewed at least annually by the Prime Minister.”
To ensure that the list of Operational Purposes is reviewed at least annually by the Prime Minister.
Amendment 12, page 99, line 39, at end insert—
“(5D) The Investigatory Powers Commissioner and Intelligence and Security Committee of Parliament (ISC) will be kept informed of any changes to the list of Operational Purposes in a timely manner.
(5E) Subject to subsection 201(7), the Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes which, during the period of his report, have been specified in any warrants issued under Parts 6 and 7.”
To ensure that the ISC and Commissioners are kept informed of changes to the list of Operational Purposes. To ensure that a summary of the Operational Purposes are published each year.
Amendment 397, page 100, line 2, leave out clause 126.
Amendment 398, page 100, line 10, leave out clause 127.
Amendment 22, in clause 127, page 100, line 12, leave out
“before it would otherwise cease to have effect”
and insert “during the renewal period”.
See amendment 20.
Amendment 23, page 100, line 34, at end insert—
“(2A) ‘The renewal period’ means the period of 30 days ending with the day at the end of which the warrant would otherwise cease to have effect.”
See amendment 20.
Amendment 153, page 101, line 9, leave out clause 128.
Amendment 154, page 102, line 25, leave out clause 129.
Amendment 401, page 103, line 8, leave out clause 130.
Amendment 402, page 103, line 31, leave out clause 131.
Amendment 403, page 104, line 19, leave out clause 132.
Amendment 404, page 105, line 44, leave out clause 133.
Amendment 405, page 106, line 24, leave out clause 134.
Amendment 406, page 108, line 1, leave out clause 135.
Amendment 407, page 108, line 29, leave out clause 136.
Amendment 408, page 108, line 39, leave out clause 137.
Amendment 409, page 109, line 16, leave out clause 138.
Amendment 410, page 110, line 40, leave out clause 139.
Amendment 212, in clause 139, page 110, line 42, leave out
“review the Secretary of State’s conclusions as to the following matters”
and insert “determine”.
Amendment 213, page 111, line 7, leave out subsection (2).
Amendment 278, page 111, line 7, leave out from “must” to end of line 8, and insert “subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 212 and 213 (which are a package).
Amendment 411, page 111, line 16, leave out clause 140.
Amendment 412, page 111, line 21, leave out clause 141.
Amendment 413, page 112, line 2, leave out clause 142.
Amendment 414, page 112, line 10, leave out clause 143.
Amendment 155, page 113, line 9, leave out clause 144.
Amendment 156, page 114, line 19, leave out clause 145.
Amendment 417, page 115, line 2, leave out clause 146.
Amendment 418, page 115, line 25, leave out clause 147.
Amendment 419, page 116, line 7, leave out clause 148.
Government amendments 44 to 47.
Amendment 420, page 116, line 35, leave out clause 149.
Amendment 421, page 117, line 11, leave out clause 150.
Amendment 422, page 118, line 39, leave out clause 151.
Amendment 423, page 119, line 8, leave out clause 152.
Amendment 424, page 119, line 36, leave out clause 153.
Amendment 425, page 120, line 10, leave out clause 154.
Amendment 426, page 121, line 33, leave out clause 155.
Amendment 427, page 122, line 4, leave out clause 156.
Amendment 428, page 123, line 1, leave out clause 157.
Amendment 214, in clause 157, page 123, line 3, leave out
“review the Secretary of State’s conclusions as to the following matters”
and insert “determine”.
Amendment 215, page 123, line 15, leave out subsection (2).
Amendment 281, page 123, line 15, leave out from “must” to end of line 16, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners.
Amendment 429, page 123, line 24, leave out clause 158.
Amendment 430, page 123, line 41, leave out clause 159.
Amendment 431, page 124, line 34, leave out clause 160.
Amendment 432, page 125, line 3, leave out clause 161.
Amendment 433, page 125, line 25, leave out clause 162.
Amendment 434, page 126, line 3, leave out clause 163.
Amendment 157, page 127, line 1, leave out clause 164.
Government amendments 127 and 128.
Amendment 158, page 128, line 14, leave out clause 165.
Amendment 437, page 129, line 1, leave out clause 166.
Amendment 438, page 129, line 25, leave out clause 167.
Amendment 439, page 130, line 14, leave out clause 168.
Amendment 440, page 131, line 33, leave out clause 169.
Amendment 441, page 132, line 3, leave out clause 170.
Government amendment 129.
Amendment 442, page 133, line 30, leave out clause 171.
Amendment 443, page 134, line 12, leave out clause 172.
Amendment 444, page 134, line 19, leave out clause 173.
Government amendment 130.
Government new clause 14—Health records.
New clause 3—Restriction on use of class bulk personal dataset warrants—
“(1) An intelligence service may not retain, or retain and examine, a bulk personal dataset in reliance on a class bulk personal dataset warrant if the head of the intelligence service considers—
(a) that the bulk personal dataset includes a large quantity of sensitive personal data, or
(b) that the nature of the bulk personal dataset, or the circumstances in which it was created, is or are such that its retention, or retention and examination, by the intelligence service raises issues which ought to be considered by the Secretary of State and a Judicial Commissioner on an application by the head of the intelligence service for a specific BPD warrant.
(2) An intelligence service may not retain, or retain and examine, greater than twenty distinct bulk personal datasets in reliance on any class BPD warrant.
(3) In subsection (1) ‘sensitive personal data’ means personal data consisting of information about an individual (whether living or deceased) which is of a kind mentioned in section 2(a) to (f) of the Data Protection Act 1998.”
On behalf of the Intelligence and Security Committee of Parliament, to place greater restrictions on the use of Class BPD warrants in relation to the retention/examination of sensitive personal data (relating to race, political opinions, religious beliefs, trade union membership, health, or sexual orientation). To cap the number of datasets which may be covered by any Class warrant.
Amendment 445, page 135, line 4, leave out clause 174.
Amendment 446, page 135, line 21, leave out clause 175.
Amendment 447, page 135, line 37, leave out clause 176.
Amendment 448, page 136, line 9, leave out clause 177.
Amendment 303, in clause 177, page 136, line 44, at end insert—
“(5) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(6) The Secretary of State may issue the warrant only if—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material”.
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 449, page 137, line 1, leave out clause 178.
Amendment 24, in clause 178, page 137, line 17, leave out “and” and insert—
“(aa) a statement outlining the extent to which sensitive personal data as defined by section [Restriction on use of class BPD warrants] is expected to be part of the bulk personal dataset, and”.
On behalf of the Intelligence and Security Committee of Parliament, to require specific BPD warrant applications to set out the extent to which datasets may include sensitive personal data (relating to race, political opinions, religious beliefs, trade union membership, health, or sexual orientation), in order that the Secretary of State may properly assess the proportionality of obtaining the dataset.
Amendment 304, page 138, line 2, at end insert—
“(8) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(9) The Secretary of State may issue the warrant only if—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 450, page 138, line 3, leave out clause 179.
Amendment 216, in clause 179, page 138, line 5, leave out
“review the Secretary of State’s conclusions as to the following matters”
and insert “determine”.
Amendment 217, page 138, line 22, leave out subsection (2).
Amendment 284, page 138, line 22, leave out from “must” to end of line 23, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 216 and 217 (which are a package).
Amendment 451, page 138, line 31, leave out clause 180.
Amendment 452, page 139, line 4, leave out clause 181.
Amendment 453, page 140, line 1, leave out clause 182.
Amendment 454, page 140, line 15, leave out clause 183.
Amendment 455, page 141, line 4, leave out clause 184.
Amendment 456, page 141, line 26, leave out clause 185.
Amendment 159, page 142, line 13, leave out clause 186.
Amendment 160, page 143, line 22, leave out clause 187.
Amendment 459, page 144, line 7, leave out clause 188.
Amendment 460, page 144, line 25, leave out clause 189.
Amendment 461, page 146, line 2, leave out clause 190.
Amendment 462, page 147, line 5, leave out clause 191.
Amendment 463, page 147, line 21, leave out clause 192.
Amendment 305, in clause 192, page 147, line 42, at end insert—
“(4A) A direction under subsection (3) may only be made for material relating to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012 if the Secretary of State considers that—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of such material; and
(b) that specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 464, page 148, line 37, leave out clause 193.
Anne McLaughlin
Part 6 of the Bill, on bulk powers, is perhaps one of its most controversial parts. The Scottish National party is calling for part 6 to be shelved along with part 7 until such time as an argument for their inclusion has been demonstrated by an independent review of their proportionality and operative necessity—that is to say that we believe that the powers in part 6 should be removed from the Bill until a satisfactory operational case is made for them.
The review the Government have agreed to is most welcome but they must get it right. It must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or is to secure the public’s confidence in its conclusions. Yesterday we had sight of some more detail about the review, in a letter from the Minister to the hon. and learned Member for Holborn and St Pancras (Keir Starmer). We were particularly pleased to note that one of the review team will be a barrister who has a great deal of experience working as a special advocate acting against the Government in terrorism cases. That degree of balance is good and is to be welcomed.
The review needs to be given the time to do a thorough job, however, and we simply do not believe that three months is long enough. Even if it were, it would not be the first time we have been promised a date by which a report will be published, only then to be given another, and another.
The Minister for Security (Mr John Hayes)
I thank the hon. Lady for the warm words she is offering, which reflect the spirit in which this debate has been conducted throughout. The review will be conducted in the timeframe she describes because the Government are clear that it should take place while the Bill is live and is enjoying its passage through both Houses of Parliament. It would have been quite inappropriate to have a review once the Bill had passed into law.
Anne McLaughlin
I would argue that the review should have happened before now. Even if it is completed within three months, that will not be while scrutiny of the Bill is taking place here by elected Members; the scrutiny will be in the other place by Members of the House of Lords, who are not elected.
We are also confident that the review’s findings will not be significantly different from those of the reviews carried out by other countries, which I will come on to in a moment. In other words, it is likely to find that bulk powers are not necessary and give us no unique information that could not be garnered by other investigative techniques. Regarding those other techniques, the Government are arguing that new clause 5 will mean that bulk powers will be used only when other investigative techniques show up nothing, because the new clause recognises the importance of privacy to the individual—indeed, new clause 5 has been dubbed the privacy clause.
Simon Hoare (North Dorset) (Con)
Although I served on the Bill Committee, the hon. Lady must forgive my ignorance. She mentioned other means aside from bulk powers. Is she going to delineate those to the House?
Anne McLaughlin
If the hon. Gentleman would care to exercise a little patience, he might get the answer to that. He might not, mind you. [Laughter.] No, he will. I am joking.
I understand that the Government are arguing that new clause 5 is a privacy clause, but how can we trust their commitment to privacy when between the publication of the draft Bill and the publication of this Bill the significant change to deal with the need for privacy to be of primary importance entailed simply changing the name of part 1 from “General Protections” to “General Privacy Protections”? This is not about words, but about intent, action and commitment, and inserting one word appeases no one.
Lucy Frazer (South East Cambridgeshire) (Con)
First, is the hon. Lady aware that there is a sunset clause? Secondly, if the powers are not available to be exercised but it is found that they are necessary, there will be a gap in our security services’ ability to combat terrorism and in the police’s ability to combat serious crime.
Anne McLaughlin
I will come on to that point shortly.
The fundamental point is this: why should we as Members of Parliament be expected to vote through legislation that is to be reviewed? That seems an unprofessional way—to say the least—to do business, and I would feel very uncomfortable crossing my fingers and hoping for the best. I also appeal to Labour colleagues to be a little more circumspect about trusting this Government with their votes today.
Let us take a look at one of the countries I mentioned earlier that has already reviewed bulk powers—the USA. The Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The NSA and others put up a strong case for maintaining it. The NSA produced a dossier of 54 counter-terrorism events in which, it said, bulk powers contributed to success in countering terrorism, but two entirely independent American bodies reviewed all 54 counter-terrorism cases and determined that only 12 had any relevance to the use of bulk powers under section 215 of the USA Patriot Act 2001.
One of those groups—the President’s Review Group on Intelligence and Communications Technologies, which is a very well respected, high-powered and independent body, set up under the auspices of President Obama—concluded:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215…was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”
The other body—the Privacy and Civil Liberties Oversight Board—concluded similarly. It said that it had
“not identified a single instance involving a threat to the United States in which the program”—
meaning the use of bulk powers—
“made a concrete difference in the outcome of a counterterrorism investigation.”
It went further, saying that it was
“aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Whatever I think the outcome of the review will be—none of us knows, because it has not happened—it is none the less a recognition that the Government have failed to convince both the House and wider society of the necessity of the powers.
Joanna Cherry (Edinburgh South West) (SNP)
Does my hon. Friend agree that it is vital that the independent review looks at the American experience, given that America is one of our chief allies? Does she also agree that the Opposition should seek an assurance from the Government that the independent review will do so?
Anne McLaughlin
It would be very helpful if the Opposition secured that. We should not just follow suit—we support the review, but will not say, “Do as America does.” We must conduct our own review. Given the extent to which the Americans have looked at this, we need the same access.
Anne McLaughlin
May I continue? I have already given way to the hon. and learned Lady and am conscious of the need to let other Members speak. I will possibly give way a wee bit later.
The review is welcome—of course it is, not least because it is hoped that David Anderson QC will do what Liberty and others have called for and use the opportunity properly to challenge the evidence and produce a thorough, comprehensive and unbiased examination of the necessity of all bulk powers in the Bill. However, the review was called for long ago by Liberty and other respectable organisations. The Government could and should have completed it before asking MPs to vote for the Bill.
When we are dealing with proposals that are so broad—the proposal is effectively for bulk data harvesting from mainly innocent citizens—it is incumbent on the Government to prove that there is an operational case and that the powers are necessary, and to ensure that the safeguards in place are rigorous. The Government have neither proven the operational case for the powers nor have they delivered safeguards and oversight of sufficient calibre to make the powers justifiable.
Anne McLaughlin
I will give way to the right hon. and learned Gentleman but I am trying not to give way too often.
Mr Grieve
I am grateful to the hon. Lady. As I indicated when I spoke on Second Reading, I appreciate that bulk powers are controversial, but I am absolutely sure that we do not conduct data harvesting in this country. It simply does not happen. The use of bulk powers is not for that purpose, but for the purpose of examining material. Even though that may be done in bulk, it is done in a way that does not amount to the generalised harvesting of data for their examination. It simply is not.
Anne McLaughlin
My answer to that is simply that if the Bill allows for bulk data harvesting, it can still happen. We cannot sit here and say, “No, it will never happen.”
The SNP argument is not to do down our security services or anyone else working to keep our constituents safe. We argue that we would fail as a Parliament if we assert our power on behalf of our constituents and fail to place proper limitations on the scope of the state to interfere in the lives of innocent private citizens.
Dr Andrew Murrison (South West Wiltshire) (Con)
Will the hon. Lady give way?
Anne McLaughlin
I will not give way at the moment—I have given way too many times and others want to speak.
To use an illustrative analogy, if we were to authorise the opening, scanning and retention of all mail via a particular post office in the hope that one day we could go back once we had found, via another investigative technique, a suspicion about a certain user of that post office, our constituents would rightly be marching on this place demanding that we stop such an outrage. Do the Government really believe that people using that post office would be content to believe that all was well as long as the letters were stored in a big safe to which only the good guys had the key, or that they would be read only after a warrant was required? I do not believe so—people are not that daft and, strangely, for some unknown reason, they are not that trusting—yet the Government are asking us to focus on the issue of access and examination, and to ignore the massive combine harvester in the room, meaning bulk data collection. Government Members may well groan, but we are entitled to express our opinions on the Bill and to scrutinise the legislation rigorously.
On the Government’s own terms, that abuse of public privacy is of very limited use anyway. Targeted powers are far more effective and could resolve many of the privacy concerns. If we have a justifiable case to access information, we already know who we should be targeting for data collection. Why are we wasting time and resources using bulk techniques for that collection?
Seema Kennedy
The hon. Lady referred to known targets, but surely one advantage of bulk data gathering is finding those unknown people out there who wish to do us harm.
Anne McLaughlin
I wonder how the hon. Lady believes we will do that. The evidence reviewed by the Committee showed that bulk powers are counter-productive because the sheer scale of the data makes them impossible to analyse adequately. In fact, I believe the Government used the limited capacity of the security services to analyse bulk quantities of data as a form of assurance, which was strange to say the least.
Mr John Hayes
I say this to be helpful to the hon. Lady. I fear that the debate has moved on and she has not. The truth of the matter is that the bulk powers she describes were considered by the Intelligence and Security Committee, which is chaired by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It established that there was both validity and necessity. She is arguing a general case on bulk rather than the case for safeguards. The debate we ought to be having is about safeguards, is it not?
Anne McLaughlin
I thank the Minister for that advice and will pass it on to my constituents, who have the same concerns as I do and whose concerns I am expressing.
As we know, the Bill is supposed to be a basis for the use of those techniques for quite some time, and we are not future-proofing the Bill if we say that it is absolutely fine to have intrusive bulk techniques because now, in 2016, we do not have the technical capabilities to analyse all the data. Some present-day practices are reliant on 32-year-old laws—they date back to 1984, of all years. If we get the measure wrong, there is every possibility that we will enshrine in law invasive practices that will become feasible only at some point in the next 32 years.
Perhaps the most worrying powers of part 6 refer to bulk equipment interference, which the Government helpfully outline as follows:
“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.
It is therefore an indiscriminate form of interference that leaves systems vulnerable, not only to our own security services using their powers sparingly and proportionately, but to those looking to cause harm and to profit from broken security. If the front door of someone’s house has been kicked in by the police, criminals are not prevented from entering after their departure.
Our concerns regarding the bulk powers provisions in part 6 are connected to many of our concerns regarding the use of bulk datasets. At the heart of the matter is the retention of intimate personal details regarding the tens of millions of ordinary citizens of this country who do not merit such information being held by the state. We welcome the review of the use of bulk powers and recognise that other parts of the Bill impact on part 6 —it cannot stand in isolation. If bulk datasets are acquired by other mechanisms in the Bill, how are they to be dealt with and properly handled? Therefore, as we have stressed throughout, the Bill should be easy to understand, and should clarify what is permitted and what is not. We should not provide a mechanism whereby we rubber stamp practices that were never previously debated.
Again, the offline analogy is instructive. If we were asked by the state to deposit our membership forms for various organisations—political parties, campaign groups, golf clubs—or forms with our direct debit details, health records and other such bulk information into a big safe on the understanding that only the security services would have access to it, we would rightly baulk at such a proposal. Just because such a system is being proposed online and without the consent of the individuals concerned does not make it acceptable—in many ways, it makes it much worse. I hope the Minister will address that comparison.
Mr Grieve
It is a pleasure to be able to participate in today’s debate. I will move the amendments standing in the name of the Intelligence and Security Committee in a moment, but I would not be doing justice to this afternoon’s debate, on a matter of great and legitimate public interest and importance, if I were not to seek briefly to respond to the perfectly reasonable fears expressed by the hon. Member for Glasgow North East (Anne McLaughlin).
Those fears highlight the difficulty we have in this country—certainly for Members of Parliament, but I dare say also for members of the public and certainly for non-governmental organisations interested in civil liberties—in reconciling an assessment of what the agencies may be doing in relation to bulk powers, with what those of us who have become privy to classified information by virtue of our work actually see is happening in reality. I am not sure that this is a gap that is very easy to bridge. I can only do my best to explain to the House and to the hon. Lady how I see the system working.
In an ideal world, it would always be better if we used targeted interception. If we know what it is we are trying to intercept and have reasonable grounds that are necessary and proportionate for doing so, then clearly that is what we should be aiming to do. The reality, however, is that the use of the internet today, in respect of the transfer of information, is of such an order that if there were not bulk powers to enable the agencies to look to intercept bulk and then search it to find what they are looking for, it would in practice be very difficult for the agencies to defend our security against espionage and, in particular, terrorism. That is the reality.
That point has been made repeatedly, including in public by agency heads. When Sir Iain Lobban gave evidence to the Intelligence and Security Committee, the only time it held a public hearing, he explained that the idea that there is bulk harvesting of data in order to carry out a detailed examination of them is, in fact, fanciful. That is not what is happening. What is happening is that there may be the retention of a bulk group of data in which in reality the vast majority—in fact, probably over 99%—will never be looked at, except in so far as it exists as a few digits on a screen. Ultimately, the agencies are interested in the nugget—or, as he described it, the needle in the haystack—that they are actually looking for. The idea that the privacy of an individual will be compromised if it just so happens that their internet traffic is caught in that particular net is simply not real. That is the reality of what goes on.
If I may say so to the hon. Lady and to the House, I do not really think that that is very different from what was probably going on 100 years ago when somebody suspected there might be a letter in a mailbag coming down from Glasgow to London. They could identify some of the markers on it and the handwriting, so they took an entire mailbag, tipped it out and looked to see if they could find the letter they were looking for. They then put all the other letters back in the mailbag and sent it on. The only realistic difference is that at the moment we do not have to stop the mailbag, because the mail can be transferred and we can simply retain the data somewhere else.
I appreciate that this is an area where people will legitimately be anxious that this could be capable of misuse. Of course, the hon. Lady is right that it could be capable of misuse. Anybody in this House who wants to raise concerns about misuse is raising a perfectly legitimate point. The question is what safeguards we can properly put in legislation, and through the framework we create in a democratic and free society, to try to ensure that that misuse will not and does not occur. The Intelligence and Security Committee, of which I am the Chairman, is part of the process of trying to ensure that there is no such misuse.
Joanna Cherry
I am listening very carefully to the right hon. and learned Gentleman, because he is very knowledgeable in these areas. Is he aware that during the currency of the Public Bill Committee, The Guardian published an internal newsletter from MI6 from September 2011, which said that individuals within MI6 had been
“crossing the line with their database use…looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal convenience…check the personal details of colleagues when filling out service forms on their behalf”?
Is he aware that there is internal recognition of misuse of data within the security services?
Mr Grieve
Yes, I was aware of that. That has, I think, been public knowledge for some time. So far as I am concerned, as the Chairman of the Intelligence and Security Committee, we take that very seriously. Indeed, I believe the agencies took the matter very seriously as well, and that those involved were disciplined. The point was made that however innocent the activity of looking up one’s friend’s address might appear, it was not an acceptable thing to do. I certainly agree. That was one reason why, yesterday, I highlighted the issue of offences and was pleased to get the response from my hon. Friends on the Treasury Bench that they were taking this issue seriously. I worry that the penalties attached to some of the potential offences appear to be insufficient. I fully understand the point the hon. and learned Lady makes, but we must be a bit careful before we translate what appears to have happened in such cases into a belief that there is systematic abuse of the data sets that may be held—that is what we are talking about—by agencies, and that the material in them is being misused or put to some nefarious purpose that is not legitimate for the purposes of national security.
James Cleverly (Braintree) (Con)
Is it not the case that there are many things in public life—the police, computers, firearms and so on—that have the potential for misuse, but that the potential for misuse is not a reason to eradicate them from public life? It is a reason to ensure there is a robust framework and—this is the point my right hon. and learned Friend is making—a proper system of penalties for misuse, rather than just scrapping a whole capability because of potential future misuse.
Mr Grieve
Yes, I agree entirely. I am afraid that, because human society is not perfect, eradicating every instance of misconduct by public servants is likely to be impossible. We therefore have to ensure proper safeguards and ethics. Here I simply repeat what I said before. My own experience is that the ethical standards of the agencies are very high; that is not to say that one does not have to be vigilant about maintaining those standards, or that there might not have been instances where their ethical standards slipped, but everything I and, I think, my fellow members of the ISC have seen has constantly reassured us that those ethical standards are at the heart of what they do. I recollect Sir Iain Lobban saying that if he had asked his staff at GCHQ to do something unethical, they simply would not have done it. He said they would have refused, had he made the request of them.
I simply say that about the framework. I now turn to our amendments, the first group of which consists of amendments 9 to 12 and deals with an issue that goes to the heart of bulk powers: operational purposes. In the ISC’s report on the draft Bill, we were critical of what appeared to us to be the lack of transparency around operational purposes, which are of the utmost importance—this picks up on what the hon. Member for Glasgow North East said—as they provide the justification for examining material collected using bulk powers. If it falls outside legitimate operational purposes, one cannot examine it. We therefore recommended that in some form and in a manner consistent with safeguarding security—the two things are often difficult to reconcile—the list ought, so far as possible, to be published. We also recommended that the ISC have a role on behalf of Parliament in scrutinising the full classified list of operational purposes.
We were also concerned, when we investigated the matter further, that in some cases the nature of the list of operational purposes lacked clarity, as did the procedures for managing it, which seemed largely informal, particularly those for adding an operational purpose to the list. As matters stand now, that can effectively be done by a senior officer in the organisation. Our amendments are therefore intended to give effect to our original recommendations for greater scrutiny and transparency, while also trying to create a formal mechanism for the establishment, management, modification and review of the list of operational purposes.
Mr John Hayes
I anticipated that my right hon. and learned Friend would raise this matter, given that he puts such emphasis on his report. I am absolutely committed to considering the matter in the way he describes, and I am prepared to say now that we will go away and consider his amendments, with a view to introducing further amendments to the Bill to satisfy him and his Committee on this issue.
Mr Grieve
I am grateful to the Minister and will keep that in mind, but so that the House might understand, I will just take it through what we proposed.
Amendment 9 sets out:
“The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
That is to formalise the process, which at the moment we think is too informal. Under amendment 10, an
“operational purpose may be specified in the list…only with the approval of the Secretary of State.”
We think that when an operational purpose is added to the list, it should go through the Secretary of State and be signed off by her. My understanding—I hope that the Minister will confirm this in due course—is that the Government do not see any significant problem with introducing such a system.
Mr Grieve
I see the Minister nodding; I am grateful to him.
Amendment 10 also states:
“The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121”.
That is to ensure that the Minister understands what the agency is asking for in adding an operational purpose to its list.
Tom Elliott (Fermanagh and South Tyrone) (UUP)
Going back to amendment 9, is the right hon. and learned Member confident that the list will not be too prescriptive—in other words, that those who want to find a way around it, will be able to do so?
Mr Grieve
I do not think the list should be too prescriptive. It will clearly be flexible. From my understanding of the list and what I know about the existing lists, they do have flexibility and can be added to and subtracted from. They are the day-to-day operational purposes for examining bulk data. That is what should be there. At the moment, it is something of an informal process; there is no suggestion that it is not being followed properly, but I think it needs to be formalised a bit more, which is what the amendments are intended to do. Amendment 11 states:
“The list of operational purposes…must be reviewed at least annually by the Prime Minister.”
Amendment 12, which has caused the Government greater—and understandable—difficulty, would put in place the following requirement:
“The Investigatory Powers Commissioner and Intelligence and Security Committee”—
that is us—
“will be kept informed of any changes to the list of Operational Purposes in a timely manner.”
I always stress that the Committee is not there to monitor the activities of the intelligence agencies in real time; it is outside our remit to do so, as the Executive has to get on with its decision making, but we have the power to look at virtually everything we want—unless the Prime Minister denies us access, which has never happened in my time as Chairman—and the right to ask for material and to be briefed on what has happened in the past.
My impression is that the Government have no great objection to letting us see, on an annual basis, how the list has been reviewed, but we took the view that “timely” meant a bit more frequently than that. To make our position clear to the Minister and the Treasury Bench, we think that we ought to be kept informed of any changes not necessarily the day after they happen but certainly within a reasonable timeframe so that we might follow the changes that take place. The merit is that because we can, if necessary, call an evidence session and ask the head of an agency to come and explain to us what has been going on, we could provide reassurance to the House that the system was being operated correctly. I want to emphasise that that is the purpose of the amendment.
I do not expect the Minister to give me a completely positive response to amendment 12 today—he has kindly intervened already—but I would like him to provide an assurance that the Government will give this careful consideration and come up with a solution that enables the ISC to do its job. If he cannot, I might have to press the amendment to a vote, which I do not particularly want to do
Mr John Hayes
My right hon. and learned Friend is right to anticipate that this is the issue that has troubled us most of all his Committee’s many sensible proposals. From what he has said, I know he will understand that the balance to be struck is between that kind of proper scrutiny and ongoing security operations, which clearly require that consideration of operational purposes be a dynamic matter. It is critical that we strike that balance, but I hear the tone and tenor of his remarks and I am happy to say that the Government will consider the matter carefully and continue our discussions with him.
Mr Grieve
I am grateful to the Minister. On that basis, I think that these will be probing amendments, but I hope the matter can be properly resolved as the Bill goes through another place.
Amendment 12 states that the
“Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes”.
Those would likely be more limited than the full list, but it would help to have some broad understanding.
I must take a moment on new clause 3, given that it deals with such an important matter. In the ISC’s report, we recommended that class bulk personal dataset warrants be removed from the Bill on the basis that the potential intrusion into privacy was sufficient to require that each distinct dataset should require specific approval by Ministers. However, we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical.
However, were we to accept class warrants for bulk personal datasets, we would need safeguards to ensure that their use was limited. We therefore proposed three restrictions. The first relates to the most sensitive personal data, using the definitions in the Data Protection Act 1998, and would prohibit the retention of any dataset containing a significant quantity of data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life. The second restriction relates to bulk personal datasets that are somehow novel or out of the ordinary. In those circumstances, we would not consider a class warrant to be appropriate, so subsection (1)(b) of new clause 3 is designed to ensure that such cases will be referred to the Secretary of State and the commissioners by way of a specific warrant.
Finally, we express concern that we should not end up with bulk personal dataset inflation and have suggested that bulk personal dataset warrants should be limited to 20 individual datasets. I emphasise to the House that that is a completely arbitrary figure in many ways. If the Government have an alternative approach, I am more than happy to listen. I accept that if we impose a limit of 20, it is possible that the Home Secretary might be asked to sign two identical bulk personal dataset warrants in one go, if they are expecting to pick up 40. However, it seems to me that there needs to be some numerical cap, above all to ensure that the Home Secretary or Foreign Secretary, depending on who it is, is aware of what is being collected.
I would emphasise that we have seen the entire list of bulk personal datasets and we have never been of the opinion that anything is being collected that is not legitimate, and some of it, I can tell the House, is pretty mundane as well. That said, it is right that the House should exercise some caution about the expansion of those datasets, because one can see that in some circumstances they could touch upon information that is regarded as highly sensitive.
Mr Hayes
I hesitate to intervene again, but I hope these exchanges are proving helpful to the House, as well as to my right hon. and learned Friend and me—and to you, Mr Deputy Speaker. My right hon. and learned Friend touches on an important issue. I think he will acknowledge that it would be undesirable to set an arbitrary figure, but it is certainly the case that the Home Secretary, the Foreign Secretary and the Northern Ireland Secretary would want to take into account the numbers. It seems to me that the numerical case that my right hon. and learned Friend is making is not without merit. I am not sure that this is a matter to be dealt with on the face of the Bill, but it certainly should be dealt with.
Mr Grieve
I am again most grateful to the Minister. I entirely accept that if he can produce, for example, an assurance before the passage of this Bill through Parliament that there will be a protocol in place—which we, for example, have access to—that sets out exactly how the process will be managed in practice and that we can provide the House with the reassurance that that is being followed, that would satisfy my concerns.
However, I do think there is an issue here, because frankly the world is made up of more and more bulk personal datasets, largely being collected in digital form, and there needs to be a process in place to ensure that what is there is legitimately held and is not just being added to in a way that could be outside Ministers’ line of vision altogether, unless they specifically started asking questions. That is the sort of approach I am talking about, so on that basis I am happy to accept the Minister’s assurance.
Gavin Robinson (Belfast East) (DUP)
I am less perplexed by the arbitrary nature of subsection (1)(b) of new clause 3 and more interested in subsection (1)(a). What is meant or intended by the word “large”? Can the right hon. and learned Gentleman say what proportion or quantum would be considered large when considering a personal dataset? There may be some helpful read-across from the 1998 Act, but it would be useful in considering this amendment to know what is intended by that entirely non-arbitrary and open suggestion?
Mr Grieve
Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.
However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.
Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.
Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.
I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.
One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.
Mr John Hayes
I sense that the hon. and learned Gentleman is about to move on to wider issues. Before he does so, let me deal with the issue of the application of the content of the manuscript amendment, which, as he said, specified a part of the Bill. He is right to say that the principles that underpin the amendment should apply to the whole Bill, and I will ensure, as the Bill proceeds, that that is the case legislatively. If we need to table further amendments to make the position categorically clear, we will do so.
Keir Starmer
I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.
As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.
Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. I know that the right hon. Member for Haltemprice and Howden (David Davis) is very good at whistling, but I am sure that shadow Ministers do not respond to whistles, and that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) wanted to give way to him anyway.
Mr Davis
I was not intending to be discourteous, Mr Deputy Speaker.
The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.
Keir Starmer
Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.
Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.
The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.
As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.
I wrote to the Minister that the review to be carried out by David Anderson should be
“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,
that it should
“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,
that it should
“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,
and that it should
“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”
The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:
“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”
I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.
The Minister’s letter continues:
“In relation to your second point”—
this is really important—
“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”
That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.
Joanna Cherry
Does the hon. and learned Gentleman agree that the timetable for this independent review is such that, whereas the House of Lords will have time to scrutinise and debate it, the House of Commons will not? Does he agree that that is not acceptable in a democracy?
Keir Starmer
I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.
Mr David Davis
The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of the hon. and learned Member for Edinburgh South West (Joanna Cherry) is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.
Keir Starmer
There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.
Mr John Hayes
That is why the focus on necessity and not merely utility is so important. It would have been easy to have focused on utility. As the hon. and learned Gentleman emphasised earlier, this is about establishing to the satisfaction of independent people that the powers are necessary.
Keir Starmer
That word necessary is important in all of this. As I say, the review team’s ability to assess whether the same result could have been achieved through alternative investigative methods is important to that exercise and the confidence that we can have in the outcome.
Pressing on, the letter goes on to say that
“all necessary information, access and assistance as is needed for the review”
will be provided. It then states:
“We are absolutely clear that there is nothing to be gained, and much to be lost, by in any way restricting the review team’s access to sensitive and classified material where this is necessary to inform the review process.”
On timing, it states
“you are correct that the review will be concluded in time to inform Parliament’s consideration of Parts 6 and 7 of the Bill at the Lords Committee.”
There is a complete and instructive response to the request in my letter and that will help a great deal in how the review is received.
The review is important. It is not just an exercise for us in this House or those in the other place; it is for the public. As the right hon. and learned Member for Beaconsfield said, some Members of this House have had access to some of the powers and have seen them in operation either in previous roles or in briefings to the members of various Committees. However, it is no longer enough, nor should it be, for members of the public for politicians to stand up and say, “I have had it demonstrated to me that these powers are necessary or have been used in a particular way.” They have the right to as much information as possible to make decisions for themselves.
Anne McLaughlin
If the review comes back and says that the bulk powers are not necessary, what will the Labour party do then?
Keir Starmer
I will assess that at the time. It depends on what the report says, because if it calls any of the powers into question or makes any recommendations about their exercise, we would all want to consider that. It would be difficult for anybody in this House or the other place to make a case for a bulk power that an independent review has deemed unnecessary. Let us wait until we get to that stage and let us see what the review actually says.
As for confidence in the review, there is a question of publication. It is important that the review’s report is publicly available. I obviously understand that David Anderson and his team will see highly sensitive material, to which they will have unrestricted access, so the detail that can be put in any public report will inevitably be limited. I think everybody understands that. It is important that the report is published in some form, as most of David Anderson’s report have been, so that they can be read not only by Members of this House and of the other place, but by members of the public seeking assurances about and confidence in the review.
Fiona Mactaggart (Slough) (Lab)
This issue goes to the heart of one reason why the Bill is particularly difficult. This House depends on the members of the Intelligence and Security Committee, who find out in private sessions how the powers are being used, to report back to the House, in a way that ends up being redacted, about their confidence in the powers. We have a duty to ensure that the public are as well informed as possible, in concert with our need to protect national security, about how these things work. That is the challenge and is one reason why the House has found the Bill quite difficult to deal with.
Keir Starmer
I agree with those sentiments. Conventions and attitudes change. To take an example from my past, it was once a convention that a prosecuting authority would not give reasons for its decisions, but that has changed and for the better. The days of politicians with access to particular information assuring the public simply by saying that they have had access and that they are satisfied are well and truly over. That presents problems and difficulties in relation to what must be put in the public domain.
Mr John Hayes
The intervention of the right hon. Member for Slough (Fiona Mactaggart) has been helpful in aiding me to frame my own. She is right that operational concerns are sensitive, delicate and, of course, secret matters. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) is absolutely right that we should put as much information as possible in the report. He is also right that there will be access to security-cleared information of a highly sensitive nature, but that should not prevent us from being as clear as we can to this House, and more widely, about why it has been decided whether certain powers are necessary.
Keir Starmer
I am grateful for that intervention, which I will take in the spirit with which it was put forward. We want maximum publicity within the constraints that apply when highly sensitive information is considered. The first point of the review is to inform their lordships so that they can perform their scrutiny function, but they will be unable to do that if the report is not available to assist them in their deliberations. The review and its terms are a material and important step forward, and I am grateful for the indication about its publication when it is complete.
That takes me to the subject of medical records, which I can deal with swiftly.
Alex Chalk (Cheltenham) (Con)
Does the hon. and learned Gentleman agree that this review on the necessity of bulk powers is welcome, not just to give the public confidence, but to give confidence to the intelligence agencies that must use them? In my experience, they are scrupulous about acting within the law, and we owe it to them to award powers that they can be satisfied are both necessary and enjoy public support.
Keir Starmer
I do agree with that, and I have emphasised to the security and intelligence services that there is value in this exercise from their perspective, in making the operational case for the powers that they exercise and wish to continue exercising. That is another good reason for the review.
There has been an ongoing concern, raised first by the Scottish National party and then by Labour in Committee, about access to medical records. The concern for Labour, which I am sure is the shared position, has been about “patient information”, as defined by section 251 of the National Health Service Act 2006. That means information relating to mental health, adult social care, child social care and health services. I do not need to spell out for the House why many members of the public—my constituents and, I am sure, those of many Members—are deeply concerned about the very notion of the security and intelligence services having bulk access to those sorts of sensitive records. We tabled an amendment in Committee proposing a high threshold for the exercise of powers in relation to those records, and this is reflected in amendments 303 to 305 before the House today.
The Government have tabled new clause 14 in response to our demands. Although it does not take the same form as amendments 303 to 305, on my analysis, because of the way subsection (6) is framed, it would cover mental health, adult social care, child social care and health service records. If, either now or at some convenient point, the Minister could indicate that his understanding is that it would cover those records, I will not press amendments 303 to 305 to a vote.
Simon Hoare
There is a golden rule in the Hoare household that when in doubt we turn to Kipling—not the exceedingly good baker, but our rather excellent writer. I pray in aid Kipling in order to summarise.
I was not intending to speak on this grouping until I heard the cases deployed by the SNP and by the hon. and learned Member for Holborn and St Pancras (Keir Starmer). On the latter point, I concur and support what he said entirely, but the approach of the SNP, which we have heard since Second Reading—it was certainly a golden thread running through Committee—is one of serious annoyance to me, as I am pretty certain it is to colleagues. I am absolutely certain it is of huge anxiety to our constituents. The hon. Member for Glasgow North East (Anne McLaughlin) obviously has constituents who are very different from mine. She and I served on the Immigration Bill Committee, as did the shadow Minister, some little while ago. According to her, no constituent of hers had ever raised the issue of immigration, yet all constituents have raised with her these huge Glasgow concerns about bulk powers.
Simon Hoare
In a moment, because I want to give the hon. Lady the benefit of the words of Rudyard Kipling. I do not personalise this to her; rather I make it as a general point to her party. The SNP has demonstrated:
“Power without responsibility—the prerogative of the harlot throughout the ages.'”
The SNP is using a position of power to malign and undermine, as it has continually sought to do, the confidence of this House and of the country in the robustness and ethics of those in our security services, who, day in, day out, seek to use—I agree with the point made by the shadow Minister that they also require this—the public confidence that they have in order to make sure they have the right skills and tools to keep our constituents safe.
Joanna Cherry
I very much resent what the hon. Gentleman is saying. Is he aware that one of the founding members of the SNP, Sir Compton Mackenzie, was a member of the British security services? Is he aware that in Scotland we have one of the best records of crime prevention in the world? Is he aware that we have responsibility in Scotland—we run the Scottish Government and are now into a successful third term? Will he please reconsider his remarks, which SNP Members and most people in Scotland will find deeply offensive?
Simon Hoare
All I will say to the hon. and learned Lady, once she has calmed down from her faux anxiety, is that Compton Mackenzie must be turning in his grave, because there is a significant dereliction of duty here. One would think—this may be the case in Scotland, and if so, SNP Members must forgive my ignorance—that there is no organised crime, and that there are no paedophiles, people traffickers, terrorists and drug dealers. One would think there are no people who are trying to do us ill. Perhaps, to use the analogy of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), it is the view of the SNP that a quick rifle through a mail sack and the identification of a particular hand in a quill pen will be sufficient to interrupt some terrible deed. That may very well be, and SNP Members may be right that that will satisfy their constituents. I can tell them that it will not satisfy mine. My constituents look for the Government of the day, irrespective of the stripe, to carry out with seriousness and with democratic accountability the first duty of the state, which is to protect the realm and its citizens.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I hope that the hon. Gentleman will accept that I hold no brief for the SNP—I struggle on many days to hold any affection for it. But may I offer him the opportunity to reflect on what he has said about the duty of the SNP Members and others of us, including a substantial number on his Benches? None of us would seek to undermine the work of the security services, but it is our duty to ensure that the powers given to them by this House are necessary and proportionate. That is the work in which we are engaged here, and if we are talking about a breach of duty, it would be a breach of our duty if we were not to do that.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. The right hon. Gentleman wishes to catch my eye very shortly, and of course I want to hear him speak, but I do not want to hear the speech twice. We need short interventions.
Simon Hoare
The right hon. Gentleman has offered me an invitation and I hope he will not be offended if I do not accept it. I do not wish to reflect on or reconsider how I have positioned this. Everyone in this House has to be incredibly careful not only what we say and how we say it, but how it can be understood or construed. The Labour Front Benchers have been very clear, and I welcome their position. For the past 12 months, almost since we debated the Anderson report in this place on that Thursday last July, it has seemed that those who are bringing together the collective wisdom of the SNP have watched just a few too many reruns of “Enemy of the State” and have read too many books where they presuppose that those honest men and women who, under the rule of law, are trying to keep us safe are, in some way or another, insidious, acting in an underhand and duplicitous way, and wish us ill. As I understand it, that is essentially what they are saying. Whether they have said it implicitly or explicitly, that is my interpretation. We heard it in Committee, which is why I will be opposing their amendment later on.
Keir Starmer
Let me put it on the record that I and the Minister said at the end of the Bill Committee that the SNP had played a significant role in ensuring that this Bill reached this stage of its proceedings in much better shape than it was when it was in Committee. It was a very constructive exercise by the SNP. SNP Members took different approaches on issues to us, but to suggest that they have not played an important part in this is not to reflect the views at the end of the Committee stage.
Simon Hoare
I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.
Joanna Cherry
If the hon. Gentleman thinks that all the amendments laid by the SNP were designed to delay or frustrate the Bill, how does he explain why his own Government accepted new clause 6 on “Civil liability for certain unlawful interceptions”—I do not know whether he was in the Chamber yesterday—which was an amendment tabled by me on behalf of the Scottish National party? I say again, perhaps he would like to reconsider his comments carefully.
Simon Hoare
Heaven rejoices when a sinner repents. Of course, Mr Deputy Speaker, it is marvellous news that there has been one amendment out of about 127,000 amendments that the SNP has tabled throughout this process that has been acceptable to Her Majesty’s Government. [Interruption.] Oh, it was just 1,000. It felt like 127,000. Forgive me. This is the fundamental point. The hon. and learned Lady is right, and that is why I find it surprising. The SNP is clearly a grown-up and mature party. It is now in its third term of government in Edinburgh. It will be discharging some of these duties. It will be consulted on different things by Ministers and by those responsible for appointing commissioners and all the rest of it. There seems to be a rather peculiar disconnect between the seriousness with which the SNP takes the duties of governance north of the border and this impression of flippancy it gives when it comes to national security.
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. May I just help the hon. Gentleman? I know that he likes to bring the Chamber alive, but he needs to start to speak to the amendments. We have heard his antagonistic bits. Now I want to hear something about the amendment, because I also want to hear his colleagues, and I am sure that he does too.
Simon Hoare
Mr Deputy Speaker, you are absolutely right. I hope that I continue to be in order—
Mr Deputy Speaker
Let me reassure you that you were not in order, which is why I want you to be in order.
Simon Hoare
Let me reiterate something that might have got lost in some of the steam. I am speaking because I oppose the amendment that has been tabled.
Mr Deputy Speaker
Order. I really do not need much advice. In fact, I will give a little bit of advice, which is that we speak to the amendment—we do not speak around it or leading up to it. It is the detail of the amendment that we want. I am sure that the hon. Gentleman wants to be back on track, and I welcome that.
Simon Hoare
I oppose the amendments because they would delete very significant powers that are required. I have—as I believe the Government have—confidence in our services to deploy in an accountable way. If the hon. Member for Glasgow North East presses her amendment to a Division, I will oppose her, even if no one else does. I am content with the arguments deployed by Ministers that those bulk powers are required. We cannot dodge our responsibilities on this. We may find that it infringes and impinges on the sacred flame of civil liberties but, to keep our country safe, so be it.
Mr Carmichael
I can only regret the tone of the remarks of the hon. Member for North Dorset (Simon Hoare). Had he said anything about the content of the Bill or the amendment, I might have regretted that as well.
There are a number of matters on which I wish to touch today. I should like to speak first of all in relation to the review, which has formed so much of today’s debate. I very much welcome the appointment of David Anderson, QC. He commands respect and confidence in all parts of the House. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said earlier, it is significant and important that, first of all, he has a remit that looks at the necessity of these provisions and also that he has been able to select for himself the team with which he will be working.
I very much hope that the report will be produced in time for the Bill to be given the benefit of it when it is considered in the other place. I say to the Minister that if it is a question of a week or two here or there, notwithstanding the deadlines to which we are all working, it would be proper for the Government to take the view that it is best to get this report right rather than to get it out quickly. For my part, I am disinclined to think that David Anderson would have taken on this job if he were not able to do it in the time that is allowed to him, but, as we all know with these matters, sometimes the unexpected happens and sometimes it is not always easy to get to the truth of things. I do hope that there will be a degree of flexibility among the Government’s business managers, not least if we need a Government day to debate the report, so that the House has its voice heard.
Mr John Hayes
I will, if I may, suggest to the right hon. Gentleman, whom I worked with in government and whom I know very well, that the scope of the report should be a matter for David Anderson. For example, if he were to want to take into account the experience of other countries—this is something that the right hon. Gentleman and the SNP spokesperson called for—that would be a matter for David Anderson. We are not attempting to tie his hands in any way. As the right hon. Gentleman knows, it is my view that we need to get this review completed, so that we do not pass something into legislation without the information that emanates from it.
Mr Carmichael
I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.
We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.
On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.
Joanna Cherry
I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?
Mr Carmichael
The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.
To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.
That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.
Wendy Morton (Aldridge-Brownhills) (Con)
It is a privilege to speak on the second day of consideration of this very important Bill and to follow hon. and right hon. Friends and colleagues, as well as the many learned friends and colleagues—[Interruption.] I did not quite expect to hear that noise from the skies during my opening comments; I do not normally have this sort of impact.
I do not wish to disappoint people, but unlike my hon. Friend the Member for North Dorset (Simon Hoare) I sought neither inspiration nor cake from Kipling. Instead, I turned to the American scientist and author Neil deGrasse Tyson, who wrote very perceptively:
“Any time scientists disagree, it's because we have insufficient data. Then we can agree on what kind of data to get; we get the data; and the data solves the problem. Either I’m right, or you’re right, or we’re both wrong. And we move on. That kind of conflict resolution does not exist in politics or religion.”
Very wise words, I think.
I believe that the advantage scientists have over the rest of us who base our judgments on instinct or hope should also be available to the people who keep us safe, our security personnel and the agencies in which they so importantly serve. I appreciate the sensitivities and difficulties with this topic of bulk powers, but I feel that the Bill has had a lot of scrutiny. It has been a long time in gestation, and rightly so.
Our security services need data, the raw information—perhaps from dozens of sources. They need the hundreds, perhaps thousands of pieces with which to build a picture of the threats that face us, and they then have the knowledge to take the right action against them. In today’s world in which data are all around us, our security personnel need to be able to collect them and to have the right, with safeguards, of course, to pull them all together.
There was a good deal of discussion on Second Reading, in Committee and now on Report on the nature of bulk powers and bulk review. It saddens me that a notion seems to have developed among some that the security services, given the chance, will use new powers to hoover up all the information on us all without any control at all. I think that that perception is false. Why? As we have been told, the bulk powers referred to in this Bill are already provided for in existing legislation. The Bill brings them together and, importantly, makes them subject to robust statutory safeguards.
Kevin Foster (Torbay) (Con)
My hon. Friend is making an excellent speech. Does she agree that, as mentioned by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), having one Bill that brings consistent tests to this area and to the use of this power makes eminent sense and that that is why it should be supported?
Wendy Morton
I am grateful to my hon. Friend for his helpful intervention. He is absolutely right; it makes sense to bring these powers together and, while doing that, to consider the safeguards.
Yes, the Bill provides our security and intelligence agencies with the ability to obtain data in bulk in order to identify new threats and to learn more about existing threats, but I feel that it does not confer on them new and sweeping powers. Our intelligence agencies have bulk collection powers but they do not conduct analysis of the data in an indiscriminate manner without reasonable suspicion—it would not be lawful for them to do so. In the modern world these powers, which already exist, are crucial. Bulk capabilities are crucial.
To investigate a target, our agents need to be able to acquire its communications in the first place. When a target is overseas, bulk interception is one of the key means, and may be the only means, by which we can obtain communications that would otherwise not be available. This is especially so if that potential threat is operating in an area where we have no strong diplomatic link or where the governing authority is not in control of all its own territory. We know from yesterday’s debate that bulk powers and their use have been instrumental in keeping us safe from threats abroad and, indeed, at home. It is worth noting that the bulk powers in the Bill have already played a significant part in every major counter-terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014. They have been essential in identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over six months. Here at home the existing powers have been used to identify serious criminals who were seeking to evade detection online and could not be pursued by conventional means, supporting the disruption of more than 50 paedophiles in the UK in the past three years.
I would like to quote the words of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is no longer in his place but who has been contributing to today’s debate. He is a former Attorney General and not, if I may say so, a man who lightly allows liberties to be chipped away. He said of the Bill:
“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]
Of course, some will disagree with the former Attorney General and they rightly have the opportunity to do so, but I happen to agree with him on those points.
Finally, I want to touch on calls from Labour and the SNP on Second Reading and in the Public Bill Committee for independent validation of the operational case. We should recognise that the Government have listened and, in response to those calls, have confirmed that David Anderson QC will undertake a review to inform the passage of the Bill through the House of Lords. Parliament will then be able to decide.
I will support this Bill as one that codifies the law as much as it extends it, and that builds robust safeguards against intrusion while at the same time safeguarding the public. I believe that it is an extremely important Bill—important to our country, important to the people of our country, and important to our constituents.
Gavin Robinson
It is great to follow the hon. Member for Aldridge-Brownhills (Wendy Morton), who made a powerful speech and a lightening-inducing one, it seems, to judge from the weather outside.
Gavin Robinson
Indeed.
I commented in the Tea Room earlier that I probably would not get the opportunity to contribute on Third Reading because the debate yesterday and today has been dominated by heavyweights. When I said that to a Government Member, he looked oddly surprised that I would not satisfy that criterion. I am pleased to have the opportunity not only to speak at this point on consideration, but to make the point that it would have been wholly worthwhile to have had just one Northern Ireland voice on the Bill Committee.
Members will have recognised just how considered and detailed the process has been. On Second Reading I focused my remarks solely on the prison officer, Adrian Ismay, who had been murdered in my constituency and died that very day. I made the point that we cannot continue to have abstract conversations about the impact of terrorism or about the protection that we as a state need on national security grounds, because in the here and now it is a matter of protecting us today, tomorrow and for every day to come.
I pay tribute to the Security Minister, the Solicitor General and all those Members who have so collegiately engaged in making sure that what, in years gone by, was a difficult process with the Draft Communications Data Bill—the snoopers charter—has been set aside during what I believe has been a very encouraging debate and thoughtful consideration of the Bill. Credit is due to the Minister and his team.
A point was made by the shadow Home Affairs Minister in arguing for amendments 303 to 305, and I would be grateful if the hon. and learned Member for Holborn and St Pancras (Keir Starmer) considered this issue. We have had contributions from the right hon. and learned Member for Beaconsfield (Mr Grieve) on new clause 3 and he made the point that it would not be appropriate to retain the datasets—personal data—that engage mental or physical health issues. In the light of that, I would be keen to hear from the shadow Minister on how he believes that deals with amendments 303 to 305. If new clause 3 were passed, would those amendments be necessary?
I understand that it may not be possible for the shadow Minister to respond, although I am happy to give way. It would be useful to know whether those three amendments are likely to be pressed to a Division or whether he believes that new clause 3 deals adequately with the protections for personal health data.
Keir Starmer
I hope I made it clear that I will not press those amendments to a vote because of the new clause tabled by the Government in relation to health records, which covers the same categories of data. I am sure that that will be dealt with by the Minister when he responds.
Gavin Robinson
I am grateful to the shadow Minister for that clarification, which is very helpful.
On bulk data collection generally, the correspondence that was shared yesterday was incredibly useful. I do not recall getting correspondence between a shadow Minister and the Minister, which was shared with us all and made available in the Vote Office so quickly. It was useful and defused many of the fears and concerns that had been raised with Members of Parliament about the consequences of passing the Bill. It is important, as the right hon. Member for Orkney and Shetland (Mr Carmichael) said, that we let that process commence and that we engage in it thoughtfully.
Having made the point that there was no Northern Ireland representation during scrutiny of the Bill in Committee, I hope there is a mechanism whereby Members, be they Democratic Unionists, Ulster Unionists, Social Democratic and Labour party Members or others, get the opportunity to engage thoughtfully and purposefully in the conversation because, as we all know in the House, the history and legacy of Northern Ireland means that these are acutely live issues for us daily.
Mr John Hayes
Just before the hon. Gentleman finishes, I am more than happy to give him the assurance that my door is open to him, his colleagues and other parties during the whole passage of the legislation. When it leaves this House it will go to the other place, but I will continue to be engaged and involved with all parties who want to contribute in the way that he has described, and I thank him for it.
Ian Paisley
I want to follow up on what the Minister said. He made the point that his door is always open and we appreciate that. That has always been the case, but it probably has more to do with the personal relationships that he has built over decades in this place with Unionists, and it is highly regarded on the Ulster Bench, if I can put it that way. However, there will come a time when members of this party and Members on this Bench should be considered all the time when it comes to selecting Members for Public Bill Committees, and it should not be matter on which we need a private arrangement.
Seema Kennedy
It is a great honour to follow the hon. Member for Belfast East (Gavin Robinson).
Many right hon. and hon. Members have spoken with great experience and expertise through the various stages of the Bill. Listening to the high quality of debate, especially yesterday, I was struck by the thought that if we conducted all our business in this Chamber in this manner, our stock and our currency as Members of Parliament might rise a little with our constituents and other members of the public.
I feel humbled to speak on this crucial piece of legislation and, specifically, against the amendments tabled by the SNP. This Bill is designed above all to keep our constituents safe from harm. Some hon. Members may know that I grew up in the Tehran of the 1970s. Though now fondly remembered for its nightclubs and miniskirts, it was a city pervaded by the fear of SAVAK, the brutal secret police whose agents infiltrated every factory, every school and every park, so I am compelled to say that I have witnessed, and my family has witnessed, mass surveillance, and this is not it.
The SNP amendment would effectively remove parts 6 and 7 of the Bill, which deal with bulk warrants and bulk data sets. These show our adversaries that we will use every technological tool to keep ourselves secure, but we will not compromise on our principles.
Joanna Cherry
I do not know whether the hon. Lady was present at the time, but on Second Reading I made it very clear that the SNP was not calling the Bill mass surveillance; we described it as suspicionless surveillance. Does she agree that parts 6 and 7 permit suspicionless surveillance?
Seema Kennedy
I am afraid that I have to disagree with the hon. and learned Lady. Again, as I mentioned in an intervention, these bulk powers are absolutely crucial for our security and intelligence agencies. Let us remember that they are the only agencies that are allowed to use these powers. The reason is that some of these things are unknown. I do not want to sound like Donald Rumsfeld, but there are unknowns out there, and bulk powers are the way to deal with them.
Tom Tugendhat (Tonbridge and Malling) (Con)
My hon. Friend is making an extremely powerfully argument. Of course, one of the elements we constantly remind ourselves of when looking for terrorism or for these forms of abuse is that we are looking for a needle in a haystack. That is true, but without the haystack there is no possibility of even starting the search. These bulk powers are essential for building up that network in order to be able to search.
Seema Kennedy
I thank my hon. Friend for that intervention; he speaks with great experience.
Bulk powers are not novel. The powers already exist, but they are being given better oversight, scrutiny and transparency here. Some Opposition Members have spoken about the lack of necessity for these powers, but the necessity arises from an absolute obligation on our intelligence services to be as flexible and nimble as our enemies. Other Members, including my hon. Friend the Member for Aldridge-Brownhills (Wendy Morton), have set out the operational necessity of bulk data collection. It is about collecting information on overseas targets and providing that first sift of information—like a haystack, as my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) mentioned—so that it is possible to drill down to the necessary data and discover new threats from people who were previously unknown and identify patterns of behaviour. That would then exclude innocent citizens and facilitate more targeted searches.
The effectiveness of collecting bulk data is borne out by the fact that it has been used in every major counter-terrorism operation in the past decade. It has prevented 95% of cyber-attacks and disrupted 50 paedophiles. It is clear that the UK does not undertake mass surveillance, first because of the existing legal framework in which the intelligence services already operate, and secondly because of resource constraints. I know that the Bill Committee heard evidence about that.
I want to speak briefly about the wrong hands argument to which the hon. and learned Member for Edinburgh South West (Joanna Cherry) referred. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) quite rightly said that if we worried about the wrong hands everywhere, we would never pass any legislation. Only the security and intelligence agencies will be given the powers set out in the Bill. Those are people who have an interest in disrupting plots and bringing suspects to justice. Very little evidence is being brought forward to suggest that they are motivated by prying into innocent citizens’ private lives or that they use information wrongly. Millions of us, including all of us sitting here, handle sensitive data every day and are subject to rules, and to a large extent we obey that. Are we honestly saying that intelligence agents, having gone through rigorous vetting and appraisal, are less trustworthy than our bank managers, our GPs’ receptionists and our council officials?
The safeguards in the Bill pertaining to bulk powers are manifold and robust: the Secretary of State has to authorise bulk warrants; there is a double-lock authorisation procedure; the warrants are time-limited; there is a code of practice for the security and intelligence agencies on handling the data; and of course there is the review, which right hon. and hon. Members have expanded on at great length.
In conclusion, the proposed amendments would remove from the Bill the powers that are necessary for our security services to react to the evolving dangers that face our constituents today, here and now. Our security services do that while respecting our nation’s values. For that reason, I will oppose the amendments.
Tom Elliott
I welcome the opportunity to speak in this debate and to follow the hon. Member for South Ribble (Seema Kennedy). I fully support this legislation. If anything, I am beginning to worry that it is already being watered down. I want to make it even stronger. That is why I oppose the Scottish National party’s amendments. I heard the point made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) about health records; I appreciate that thought process and will support it if relevant amendments are proposed.
I have to say that I and some of my colleagues from Northern Ireland, and indeed on other Benches, have lived through the troubles and seen what terrorism has done. But we face a different type of terrorism now, and a different type of world criminality, much of which is conducted through technology—for example, via mobile phone signals and satellites and on the internet. We now have a totally different perspective. We therefore need a different mechanism, and we need it to be proactive, which is what I believe the Bill will do. It is about being much more proactive.
With regard to bulk capabilities, I do not see what the problem is. We have to have trust and faith in the people doing that surveillance and collecting that intelligence. If we do not have trust and faith in them to have the bulk capabilities, why do we have trust and faith in them to do other things? I think there is a real challenge out there for the wider public to realise what is actually going on in society. I do not realise everything that is happening, and I know that the wider public do not. That is why I have to have trust in those people who are carrying out these actions.
I am also aware that there needs to be a balance; I accept that. There needs to be a balance for the public, to avoid snooping and going into too much detail with these investigatory powers. However, that must be balanced against the wider public information that is required to deal with terrorism, criminality and the fraudsters in our society. For me, the priority in that balance is to deal with those people effectively. If that means people using those investigatory measures to look into some of my details, so be it. If I have nothing to hide, then I have nothing to fear. I have no difficulty with people looking at the details that are held on me, and that should be the same for the wider public if they have nothing to hide. There must be real opportunities here for the Government and the people who are carrying out the investigatory work to deal with those details. That is why I think the amendments we are debating overstep the mark and would reduce the effectiveness of the people dealing with those causes. My speech has been brief, but I think that it has dealt with the amendments succinctly.
Suella Fernandes (Fareham) (Con)
It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of the hon. Member for Glasgow North East (Anne McLaughlin), I do not think that will be the case.
I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.
I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.
Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.
When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.
Joanna Cherry
Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.
Suella Fernandes
I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.
Simon Hoare
My hon. Friend is right to draw attention to the terrorists, but let us not forget those who wish to wage war on the safety of our children through paedophilia and those who wish to wage war on the safety of women through people and sex trafficking. Those important elements are at the nub of the Bill, alongside terrorism, and we should not forget them.
Suella Fernandes
I totally agree. We are waging a foreign policy and international security war, but we are also waging war on the online fraudsters and the paedophiles. We are in a constant state of threat, and it is easy to delude ourselves if we do not face that threat directly.
Big data are presented to us as a modern phenomenon, but they are actually something that has been used before and that is quite old, and they lie at the heart of our heritage on national security.
Thirdly, the utility of bulk powers is clear. In its report, the Joint Committee made that clear after taking extensive evidence. At paragraph 340, we reported:
“We are aware that the bulk powers are not a substitute for targeted intelligence, but believe that they are an additional resource. Furthermore, we believe that the security and intelligence agencies would not seek these powers if they did not believe they would be effective and that the fact that they have been operating for some time would give them the confidence to assess their merits.”
The Committee concluded:
“we are content that the safeguards proposed by the Home Office, buttressed by authorisation by Judicial Commissioners and oversight from the Investigatory Powers Commissioner will be sufficient to ensure that the bulk powers are used proportionately.”
Therefore, after taking evidence from all sides of the debate, and from all the coalitions involved in this discussion, that was the considered conclusion of the cross-party Committee.
Stephen Hammond (Wimbledon) (Con)
Like yesterday, I want to make my usual declaration that I am not a lawyer. It is always dangerous to follow lawyers, particularly the excellent contribution of my hon. Friend the Member for Fareham (Suella Fernandes).
The amendments are clear, and I approach them from the same point of view of economic cybercrime and the importance of bulk data which I took in my comments on Second Reading and yesterday.
Understandably, the hon. and learned Member for Edinburgh South West (Joanna Cherry) raised concerns. I understand the resolve of her and her party on the central point about potentially using less targeted and less intrusive means, rather than bulk data. However, the Minister rightly made the point that there is a review, and he mentioned not only the necessity of the review, but that it would look at the necessity of these powers. If we consider the bulk powers in relation to economic cybercrime, their necessity becomes increasingly clear.
Over the past few years, our economy has been transformed by advances in technology, backed by encryption, with huge changes in how business is conducted. E-commerce is a reality not for the few but for the many. Given the parcels that arrive on my doorstep from my daughter every day, it is a huge thing that has reached everybody. More than that, there are new business opportunities for the growing IT sector. The use of big data, which my hon. Friend the Member for Fareham discussed in an historical context, is becoming increasingly evident in the context of the internet economy in looking at patterns of behaviour to determine new product design and identify new customer opportunities.
Equally, those opportunities are extended to economic cyber-criminals and terrorists. My hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) spoke about 95 cyber-attacks that have been identified through the use of bulk data. To choose one specific example, Apple has publicly accepted that the existing bulk data powers detected a vulnerability in its operating systems that, had it been exploited, would have affected the modification of the software being used on iPads and iPhones. It might have been used for all sorts of purposes, but one purpose could well have been the removal of data about bank accounts and other personal data. In the open world that we see at the moment, there are myriad threats, particularly in the dark web through password-protected information. Much of what happens is valid. The existence of encryption and anonymity protocols is a huge benefit to people, but criminals and terrorists have embraced this dark world as well. The power to acquire and analyse bulk data is therefore essential. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) said that we have to trust our security services. Those who have some experience have very clearly made the case that we should look at the whole issue of the existence of data harvesting.
I believe that the bulk data powers are essential because they allow for intelligence-gathering on overseas subjects of interest. They identify the “needle in the haystack” threats that my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) talked about by identifying small displaced fragments of information, establishing the investigation of links between subjects of interest, understanding patterns of behaviour and communication methods, and looking at pieces of information that are acquired through new and varying sources. Bulk interception focuses on foreign intelligence. Criminality and terrorism is international, and it is therefore only right that we should have access to the data so that we can detect aspects of that criminality. The importance of bulk data acquisition is clear. Detailed and directed searches of bulk data communications can establish the fact that there is communications content between subjects of interest and reveal where attacks are planned. Bulk acquisition can help to direct where a warrant for more individual targeted data, such as interception, is essential and complementary. It also allows for searches of traces of activity where previously unknown suspects may be taking part in patterns of behaviour that are well known but not yet identified.
The Bill codifies and pulls together the powers that are already in place and puts in place some consistent safeguards. As my right hon. and learned Friend the Member for Beaconsfield said, none of these powers is unnecessary or disproportionate. Through the safeguards that they are putting in place in their amendments, the Government will ensure the review of valid lines of operation by Mr David Anderson. More importantly, a number of cases will involve not just the Secretary of State but the judicial commissioner—the double lock that several Members have spoken about. In terms of the content acquired under the warrant that was initially going to look out for people internationally, if those data then pertain to people in the UK, another, more targeted examination warrant is needed. That is another protection and additional safeguard that was not there before. The statutory code of practice that is being put in place secures the safeguards that we need.
Particularly with regard to economic cybercrime, I hope that when the House considers the amendments on bulk data powers proposed by the SNP, it will conclude that Mr Anderson’s review is appropriate. Many Government Members are making an overwhelming case that these powers are necessary. I hope that the vast majority of colleagues will join us in rejecting the amendments.
Kevin Foster
It is a pleasure to speak in this debate. On Second Reading, I said that much of this can be dealt with in two ways: first, by making quite a sensationalist argument; and secondly, by looking at what is actually being proposed. Many of these powers, particularly on bulk data, are already being used, but they are now being avowed, put into legislation, and given a consistent framework. The legislation that already regulates much of this activity is from an era well before smartphones and the idea that a phone could do anything other than take a phone call. This Bill provides a much more modern piece of legislation, subject to clear safeguards.
While I appreciate the sentiments expressed by the hon. Member for Fermanagh and South Tyrone (Tom Elliott), I would always be tentative about using the argument, “If you have nothing to hide, you should have nothing to worry about.” I understand his point of view, certainly in terms of the bulk data powers, but we should always be rather careful about that being an argument for absolutely anyone being under surveillance at any time. That is not what is proposed in this Bill or these powers, given that there would need to be a warrant concerning how information is gathered.
It has been a pleasure to sit through the debate this afternoon, which has convinced me that the amendments are not justified and should be opposed. The speech given by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) was thoughtful. He adopted a responsible position, as a member of the Opposition, in teasing out some of the legitimate concerns about the Bill and making some genuine progress in getting reassurances from the Minister. It was encouraging to see that level of exchange on things that genuinely cause some concern.
Anne McLaughlin
If the review shows that the bulk powers are not necessary, as the reviews in the USA showed, would the hon. Gentleman expect the powers to be taken out of the Bill?
Kevin Foster
I thank the hon. Lady for that helpful and interesting intervention. First of all, I would not want to prejudge the review. In addition, if the review came back to us and said that these powers were absolutely right, and that they were vital for national security, I hope that we could look forward to the SNP’s immediate and wholehearted support. I have a funny feeling that we might not, however.
Let us not prejudge the review. As the Front-Bench spokesmen touched on in their exchange at the Dispatch Box, it is highly unlikely that if the review stated that something specific was not needed, such a measure would be proceeded with. How do we know what an independent review will come back with? If I knew, and I stood here and said so, the next accusation would be that the review was not independent because we already knew what it would come out with. That point does not support making the amendments, which remove these powers completely.
I have been satisfied by the changes that have been made throughout the process, as the Bill has come out of Committee into Report. Judicial safeguards have been strengthened, and there is now a stronger and more consistent judicial test for review of these warrants. Powers have been increased, as have the offences that apply if someone misuses data. The Government are striking the right balance between what we need in order to get hold of data that could keep our country safe, and the legitimate expectation of privacy. If data have been collected that are of no use, they can be removed and they will not be used for purposes beyond the original basis of the warrant.
Ultimately, in any unjustified use of a warrant, the Secretary of State remains answerable to this Parliament. If, for example, someone decided for some unknown reason that it would make sense to go into detail about political or trade union affiliation, they would be answerable to this House, and a Secretary of State would be most unlikely to survive that.
Joanna Cherry
Does the hon. Gentleman agree that the Secretary of State would be answerable to the House only if such activity came to light? It might not come to light.
Kevin Foster
I take on board the point that the hon. and learned Lady makes. However, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned, the Intelligence and Security Committee would almost certainly oversee what was happening. As was touched on with the Minister, although the Committee is not involved in live intelligence work, it carries out reviews and, as discussed in relation to one of the probing amendments tabled by my right hon. and learned Friend, there is an understanding of an exchange of information. I think it is highly likely that such activity would come to light eventually. Clearly, a Secretary of State who had sanctioned that would know that, bluntly, their job was over.
The powers in the Bill are proportionate to their aims. They have appropriate safeguards, and more work will be done following the review. It is wrong to prejudge an independent review by constantly asking, “What happens if they say no?” To put it the other way around, what happens if they say yes? I do not think that the amendments are right at this stage. It is appropriate to retain these parts of the Bill, and that is certainly what I will vote to do.
Lucy Frazer
I am honoured to take part in this debate, as I was to serve on the Bill Committee. I waited with much anticipation to hear my hon. Friend the Member for North Dorset (Simon Hoare) quote Rudyard Kipling, but I am not sure that the quote was forthcoming. At first, I thought he might say, as Kipling did:
“A woman’s guess is much more accurate than a man’s certainty.”
On reflection, I thought perhaps he would say that,
“words are…the most powerful drug used by mankind.”
That would have been an apt quote in the context of the Bill, because communication can be revolutionary. We saw that with printing. Printing established the first mass medium for transmitting information, and some historians said that it played a role in the unrest that characterised the devastating thirty years war. They say that because although the doctrines set out by Luther in the 16th century were formulated two centuries earlier, they did not spread until the printing revolution.
We are now in the midst of a technological revolution. It has never been easier for terrorists to spread hatred and devastation across continents and recruit others to do so. Our security services need the tools to keep up with the technological developments.
I will deal with two matters: first, the background to the bulk powers and the reasons we need them; and secondly, the safeguards that exist in the Bill in respect of bulk powers.
The threats that we face are real. MI5 has said that the number of terrorism offences has risen by 35% since 2010. David Anderson, the independent reviewer of terrorism legislation, has said that at the time of his report, MI5 explained to him that it had
“disrupted two…plots by lone actors in the past nine months”.
It explained to him that,
“identifying such individuals is increasingly challenging, exacerbated by the current limitations in their technical capabilities”.
David Anderson was saying the same thing as the director of Europol, who in evidence to the Home Affairs Committee in January 2015 said:
“Given that a majority of those communications run by these networks are moving online, there is a security gap there.”
He thinks that that is
“one of the most pressing problems that police face across Europe.”
The bulk powers are an important part of our toolkit. The Home Office has said that the bulk capability has
“played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since…2014”.
There are safeguards in the Bill. I have counted at least seven in relation to bulk interception. Bulk interception relates only to overseas communications; it needs to be activated in the interests of national security, in cases of serious crime or in the interests of the economic wellbeing of the UK; a warrant can be issued only by the Secretary of State; it can be issued only if the action is necessary and proportionate; the action of the Secretary of State is reviewed by a judge; there are restrictions on copying, disseminating and retaining the material that is collected; and there is a panoply of offences for cases of misuse.
During the Bill’s passage we have heard about additional safeguards. The Home Secretary has committed to providing a further operational case for bulk powers. We saw yesterday, with the passing of new clause 5, that the decision on whether a bulk power is allowed will be subject to the additional safeguard of a test of whether the result could be achieved by less intrusive means.
Like printing, the internet is improving our ability to communicate. We need to give our security forces the means to keep pace with these developments, because a country that cannot protect its citizens provides no freedom at all.
Stephen McPartland (Stevenage) (Con)
I will speak to the amendments that stand in my name, amendments 153 to 160, which would remove clauses throughout the Bill that allow for the modification of bulk warrants. I will not press them because, like the rest of my amendments, they are probing amendments designed to tease out information from Ministers and ensure that there is further debate in the other place.
As I said in yesterday’s debate, I am not a lawyer, but in my humble opinion, major modifications of a warrant have the potential to completely change the key components of that warrant. I would like to understand at what point it becomes reasonable for a new warrant to be drafted.
I listened carefully to the Minister for Security yesterday and he said clearly to the House:
“I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow.”—[Official Report, 6 June 2016; Vol. 611, c. 982.]
That is very reassuring and greatly welcome. I look forward to seeing how the robust system for modifications will be introduced as the Bill progresses. I accept that the Government have tabled a number of amendments to try to help in this area and, as I said, I will not press any of my amendments to a vote.
On a final point, I am not a particular fan of the bulk powers in the Bill. I have listened with great interest to the debates today and yesterday, and to the points that the Chairman of the Intelligence and Security Committee has made about how bulk powers are used at the moment. In my view, surveillance should be targeted and the subjects of that activity clearly identified. That may well be naive in some senses, and I appreciate that there may be some areas where we require bulk powers, to identify the haystack, as has been said. But the carte blanche on bulk powers should not be the first resort; it should always be the last resort.
There has been a lot of talk about postbags, and whether the country is at war and so on. The debate in general has been very conciliatory and Members on all sides have tried to get a Bill that, at the start of this Parliament, was very difficult to a place where most people can stomach most elements of it. I am still not in a position where I feel I can support it, but, realistically, a lot of people now feel it has been greatly improved and there is a lot of trust in the Minister for Security and the Solicitor General because of their work in listening to people and accepting amendments.
I am also very grateful that the Home Secretary has tried to alleviate concerns and agreed to an independent review of the bulk powers in the Bill, led by David Anderson, the independent reviewer of terrorism legislation. I look forward to his recommendations and what comes forward from them.
Tom Tugendhat
It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.
We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.
I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.
My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.
The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.
Joanna Cherry
Is the hon. Gentleman aware that once the bulk data are collected by warrant there is an intermediate stage in which they are analysed in the way that he describes, but there is absolutely no legal regulation of how that analysis is carried out? That is our objection. How can I make it any clearer?
Tom Tugendhat
The hon. and learned Lady speaks with her usual eloquence, but I am afraid I am going to refer her to schedule 4, part 1, which is a table containing a list of authorities and officers. The people who analyse are listed there. They are inspectors and superintendents of the Prison Service; lieutenant commanders and commanders of the Royal Navy; majors and, as in my case, very junior lieutenant colonels of the Army; squadron leaders and wing commanders; general duties officers of grade 4 and above; and Secret Intelligence Service officers.
There is a list—a catalogue—in schedule 4 of people in our country, men and women across these islands, whom we have trusted with the intelligence procurement for our nation to keep us safe. It is they who will be doing the analysis, under supervision. It is only when they have got something that is worth taking that they will be allowed to use it. That is the provision we are talking about and the type of supervision. People will not be allowed simply to collect and analyse. They will be allowed to collect and analyse only under warrant. That is absolutely essential.
Joanna Cherry
I repeat again: does the hon. Gentleman accept that no warrant is required to carry out the initial computer analysis? Does he understand that that is what those of us who were on the Bill Committee and who have worked on the Bill for months uncovered? Unlike some of his colleagues, who shout from a sedentary position that we do not understand this, we do understand it—we have been analysing it for months. Does he understand that there is no regulation by warrant of the analysis carried out by the individuals that he describes? That is the nub of the matter.
Tom Tugendhat
The hon. and learned Lady is, I am afraid, picking on a hole in the Bill that is simply not there. [Interruption.] It is not there because the collection of bulk data is entirely categorised by the Bill. The Bill supervises entirely the ability to collect bulk data. The analysis is then done by trusted officers of the state. To accuse them of anything other than the highest forms of integrity would be an extraordinary statement to make in the House.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Will the hon. Gentleman give way?
Tom Tugendhat
No, I am afraid I will not. I have given way enough.
It would be baffling to look at that list and accuse people of such integrity of having anything other than the best intentions. The important thing, however, is that we not only trust them, but supervise them. We trust but verify, as the old diplomatic phrase goes. The verification comes from the commissioners, which were listed yesterday, with their explanations, which the right hon. Member for Knowsley (Mr Howarth) was talking about yesterday. The supervision also comes from the Minister, and ultimately and eventually from the House.
I am therefore reassured that the Bill is not a snoopers charter or a grubby attempt to procure the information of the private citizens of these islands. On the contrary, this is an extremely effective Bill. It has been through months of discussion, and hours of detailed and deliberate interrogation. It has satisfied the extremely demanding standards of the Chair of the Intelligence and Security Committee, and the exemplary work of the former Director of Public Prosecutions, the hon. and learned Member for Holborn and St Pancras, whom I am pleased to see on the Opposition Front Bench.
The Bill comes to the House as a nigh-on complete work. Even so, the Government have considered and accepted amendments and further changes. We have not only a final but a polished copy of a Bill that is designed to do exactly what this country vitally needs. It does exactly what the Government are here to do. It keeps the people of these islands safe, whatever their background, origins, occupation or duties.
Fundamentally, it also protects the freedoms that we enjoy. Those freedoms are not, as the Americans put it, free. They are fought for every day, by the people on the list in schedule 4 that I have identified—our armed forces and our intelligence services. That is why I am so proud to be here today to speak up for the intelligence services who have asked for those powers; for the armed forces who require them; for the police who use them; and most importantly for the Government and, in this case, the official Opposition, who have so carefully crafted a legal document that will hold water today and for long into the future.
Mr John Hayes
What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, the hon. Member for Belfast East (Gavin Robinson), my hon. Friend the Member for South Ribble (Seema Kennedy) and the hon. Member for Fermanagh and South Tyrone (Tom Elliott) spoke with personal experience of terror.
We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry), which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.
An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.
We are dealing with powers that have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) is right to say that this is about real life operational necessity. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.
I was perhaps a little unkind to the hon. Member for Glasgow North East (Anne McLaughlin) who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary; it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.
Joanna Cherry
I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?
Mr Hayes
Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.
Mr Hayes
I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.
Anne McLaughlin
So the Minister is saying that all these counter-terrorism activities were helped by bulk powers, but now we are going to have a review to see whether that is true. As I said, there were two independent reviews in the US. The NSA argued—much as he is arguing now—that all 54 counter-terrorism events had relied on bulk powers, but both independent committees said, “Absolutely not. Not at all. There were other techniques.” What will he do if this review finds the same as the two reviews in the US? Will he then remove the bulk powers from the Bill?
Mr Hayes
It is a bit rich to say, “We want a review and we want the Government to listen and agree”, and then, when they do listen and agree, to say, “You haven’t agreed enough or soon enough.” I accept that the review should be entirely independent—I made that clear in my letter to the shadow Minister. I accept that it will be for David Anderson to decide exactly how he goes about his work. I have further accepted today that he should look at international comparisons, which I think is perfectly reasonable. It will be for David Anderson to decide whether he does that; if he wants to, that will certainly be within his scope. This will be an independent review, with as much information as possible made public, and it will be able to range, in the way the hon. Lady has described, across these powers.
Mr Grieve
I have no doubt at all that the review done by David Anderson will be valuable and I hope it will also inform the House about how bulk powers work. In that context—and because I have picked this up—there has been a suggestion that the examination of material under a bulk warrant is somehow a free-for-all that is left to the discretion of the official, and it plainly is not. It is subject to the operational purposes in clause 125, and if they are departed from, the official concerned would be acting unlawfully.
Mr Hayes
My hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) made the point, which my right hon. and learned Friend has now amplified, that these powers are subject to a range of safeguards. Let me be clear: the analysis of data intercepted in bulk is subject to automated filtering to ensure that data not of intelligence value are automatically discarded. This is a safeguard set out in the code of practice. There are rigorous safeguards in the Bill for examination, and the suggestion that there are not is, frankly, simply wrong and based on a confusion between the collection of material, as my right hon. and learned Friend has implied, and its examination.
Mr Hayes
It is right, therefore, that we emphasise—as my hon. and learned Friend, who is about to intervene on me, did—that the safeguards are clearly set out both on the face of the Bill and in the supporting material; and, indeed, that they have evolved as a result of the scrutiny we enjoyed in Committee and through the pre-legislative scrutiny.
Lucy Frazer
My right hon. Friend is responding to a point, which the SNP has made on a number of occasions, about the US. Does he, like me, remember when the hon. and learned Member for Edinburgh South West (Joanna Cherry) put that point to David Anderson on the very first day of our Committee? He said:
“It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different…I cannot speak for the US…different power, different circumstances”.––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 8, Q7.]
Mr Hayes
My hon. and learned Friend, with an assiduity that is matched by her intellect, has identified the fundamental flaw in the argument of our critics, which is that those who have looked at these matters most carefully have concluded both that these powers are necessary and that the safeguards we are introducing in this Bill—and by the way, these powers have existed for a long time; this is the first chance we have had to debate the legislative safeguards—are not only numerous but rigorous, in the way she has described. That was precisely the point that David Anderson made.
However, the hon. and learned Member for Holborn and St Pancras, in Committee and since, has said we need to do more. There are two ways for Governments to handle Oppositions, just as there are two ways for Oppositions to handle Governments: we can either do it antagonistically or we can do it co-operatively. The way I go about my work is inspired perhaps by Samuel Johnson—the great Dr Johnson, the man who said, by the way, that the devil was the first Whig, and I agree with him on that. Samuel Johnson said:
“Life cannot subsist in society but by reciprocal concessions.”
This Bill has been a model of that kind of reciprocal approach. And by the way, these concessions have not been climbdowns. They have not been given reluctantly, they have not been turnarounds and they have not been in any sense wrung out of the Government. Nevertheless, they have been given on the basis of the proper pressure exerted by the hon. and learned Member for Holborn and St Pancras and other hon. Members for the Government to do more. Good government is about listening and learning, as I said yesterday, and that is precisely what we have done in respect of this review. I look forward to it and I anticipate its outcome with the same kind of interest that I know the hon. and learned Gentleman and others share.
Keir Starmer
I am grateful to the Minister, and I feel that I should put on record my gratitude to him for the way in which he has dealt with the demands that I have made on behalf of the Labour party. They have been considerable demands.
Mr Hayes
I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]
We have listened to the call for independent validation. David Anderson QC will undertake the review, so I will say no more about that.
We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.
I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.
My hon. Friend the Member for Stevenage (Stephen McPartland), who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.
The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.
I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:
“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.
The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.
Anne McLaughlin
I have to say that the Minister’s tone does not really reflect that which some of his hon. Friends used when addressing this debate. I have felt completely patronised at times today, because people on the Government Benches have been shouting, “You don’t understand this Bill.” Just because we take a different view or come at things from a different angle does not mean that we do not understand. The right hon. Member for Rutland and Melton (Sir Alan Duncan) shakes his head, but it was offensive to have to listen to that nonsense, particularly when it was directed at my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is a learned QC and certainly does know what she is talking about.
Anne McLaughlin
No, I will not take any interventions—[Interruption.] Okay, patronise away.
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. We will listen to Sir Alan Duncan.
Sir Alan Duncan
May I just say to the hon. Lady and her hon. Friends that there was no intention whatsoever to be patronising? If she wants to take it in that vein, may I apologise and do so graciously? Our view is simply that bulk interception and bulk powers involve a poor use of the word “bulk”. The intrusion on the individual compared with the collective gathering of information is misunderstood in many cases. That is our point, and I hope that she can accept it in that spirit.
Anne McLaughlin
I most certainly will accept the right hon. Gentleman’s apology, but I reiterate that just because we come at this from a different angle does not mean that we are wrong. These are our opinions, and Government Members have their opinions.
I also want to mention the hon. Member for North Dorset (Simon Hoare), who was utterly offensive in his suggestion that we in the SNP quarter—[Interruption.] And the Lib Dem quarter, and everybody else on this side. The hon. Gentleman suggested that we do not care about terrorism or about people affected by paedophilia. Of course we care! He suggests that we do not just because we do not believe that this is the way to go about tackling those things, but we are not the only ones who believe that. It was really, truly offensive and below the belt, and I think the hon. Gentleman should apologise. I will accept it in writing if he is not going to do it here.
Anne McLaughlin
I’ll wait a long time, will I? Okay.
To sum up, we will be pressing the amendment because we have heard nothing today that reassures us. The legislative process in the House of Commons is coming to an end, but how can we be expected to vote when there is to be a review? On that note, I appeal to dear and learned friends in the Labour party to think again about trusting this lot with the review, because not one Government Member—I know that the Labour party has not done this either—will say what they will do if the independent review shows that the bulk powers are unnecessary, as has been shown in the United States—[Interruption.] No, I gave the Minister an opportunity, but instead of answering the question, he took an intervention from the Government Benches. He has not said what the Government will do if the review shows what he is not expecting it to show.
Question put, That the amendment be made.
Madam Deputy Speaker (Mrs Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 19—Local authority authorisations: notification of chief executive—
“Where, on an application under sections 66 to 69, the relevant judicial authority approves an authorisation (including a Judicial Commissioner approval by order under section 68), the designated senior officer must notify the chief executive of the local authority, or subscribing authority, of that approval, or those approvals as the case may be, prior to that authorisation taking effect.”
Amendment 320, in clause 53, page 42, leave out lines 14 and 15 and insert
“Subsection (2) applies if a designated senior officer of a relevant public authority considers—
“(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.
See amendment 327.
Amendment 321, page 42, line 21, leave out paragraph (b)(ii).
See amendment 327.
Amendment 322, page 42, line 26, leave out
“The designated senior officer may authorise any officer of the authority to”
and insert
“A communications data access authorisation may authorise the designated senior officer or a telecommunications operator to”.
See amendment 327.
Amendment 323, page 42, line 39, leave out “authorised officer” and insert “designated senior officer”.
See amendment 327.
Amendment 286, page 43, line 39, after “detecting”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 287, page 43, line 39, after second “preventing”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 324, page 43, line 41, leave out paragraphs (c) to (e).
See amendment 327.
Amendment 288, page 44, line 1, after first “or”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 289, page 44, line 1, after “any”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 290, page 44, line 2, after “any”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 291, page 44, line 2, after third “or”, insert “serious”.
This amendment inserts a higher threshold for accessing communications data.
Amendment 325, page 44, line 13, at end insert—
“(7A) An authorisation may be considered necessary as mentioned in subsection (7)(b) or (7)(f) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”
See amendment 327.
Amendment 292, page 44, line 18, at end insert—
“(9) Serious crime in subsection (7)(b) above means—
(a) any crime where a person guilty of the offence is liable on conviction to imprisonment for a term of imprisonment of [a maximum of] 6 months or more; or
(b) a crime which causes serious damage to a person’s physical or mental health.”
This amendment defines the higher threshold, inserted by other amendments to Clause 53, for accessing communications data.
Amendment 326, in clause 54, page 44, line 19, leave out clause 54.
See amendment 327.
Amendment 13, page 44, line 28, leave out subsection (3)(b) and insert—
“(b) the investigation or operation concerned is one where there is an exceptional need, in the interests of national security, to keep knowledge of it to an absolute minimum,
(ba) there is an opportunity to obtain information where—
(i) the opportunity is rare,
(ii) the time to act is short, and
(iii) the need to obtain the information is significant and in the interests of national security, or”.
On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the exceptional national security-related circumstances under which there does not need to be a separation between those requesting and those authorising requests for communications data, is narrowly drawn.
Amendment 293, page 45, line 13, at end insert—
“(7) For the avoidance of doubt, an internet connection record does not include the content of any communication.”
An amendment to clarify the description of internet connection records.
Amendment 327, in clause 55, page 45, line 16, leave out paragraph (a).
Amendment 4, page 46, line 40, leave out clause 58.
These amendments provide that in order to access communications data, a relevant public authority must seek a warrant from a Judicial Commissioner rather than undertake a system of internal authorisation. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising communications data acquisition.
Amendment 164, in clause 58, page 46, line 41, leave out “maintain”.
See amendment 163.
Amendment 165, page 46, line 41, leave out “operate”.
See amendment 163.
Amendment 166, page 47, line 1, after “officer” insert “in exceptional circumstances”.
This amendment restricts the use of the filter to exceptional circumstances. This will ensure that the use of the filter does not become routine practice or the default mechanism for obtaining communications data.
Amendment 161, page 47, line 7, leave out “arrangements” and insert “regulations”.
See amendment 163.
Amendment 167, page 47, line 18, at end insert—
“(c) obtaining the approval of a Judicial Commissioner to the filtering regulations in the same way as if the data was to be obtained by a targeted interception warrant as set out in this Act.”
This amendment requires use of the filtering arrangements to obtain data to be approved by a Judicial Commissioner. Filtering requires higher authorisation standard, as it has much greater powers to detect across many datasets and with high efficiency, being more akin to bulk acquisition than to individual requests for data.
Amendment 168, page 47, line 19, leave out subsection 3.
This amendment stops the user of the filter for general purposes - such as support, maintenance, oversight, operation or administration of the arrangements - not directly related to the core investigative functions of public bodies. It also removes the use of the filter to support the general oversight functions of the Investigatory Powers Commission.
Amendment 162, page 47, line 19, leave out “arrangements” and insert “regulations”.
See amendment 163.
Amendment 163, page 47, line 27, leave out “arrangements” and insert “regulations”.
These amendments would make the filtering arrangements to be governed by a statutory instrument subject to all normal transparency and processes of judicial review.
Amendment 169, page 47, line 32, leave out “must consult” and insert
“shall obtain the prior approval of”.
This amendment creates a duty to obtain prior approval from the Commissioner for the filtering system. By asking the Commissioner for prior approval of any plans, the assessment of necessity and proportionality would be much more likely to be robust. Any abuse and expansion of scope and abilities of data mining would be more likely to be restrained. The Commissioner would also have the ability to ensure that requirements they might seek are properly considered at the start.
Amendment 170, page 47, line 35, at end insert—
“(5A) Nothing in this section shall be used in respect of information which can be reasonably obtained by any other means under this Act.
(5B) Nothing in this section shall be used for the bulk collection of information.
(5C) The powers under this section shall only be used by the Secretary of State when no other power under this Act or other statute can achieve the same objective.”
This amendment restricts the use of the filter to those purposes the government has put forward. Given the lack of clarity on what the filtering arrangements are and whether they will become the normal way to acquire communications data of any type, this amendment seeks to restrain the power so that it is used as narrowly as possible.
Amendment 171, page 47, line 35, at end insert—
“(5A) The Secretary of State shall at least once a year make a report to Parliament detailing the filtering arrangements made under this clause.”
This amendment would require the Secretary of State to make an annual report to Parliament explaining what the filtering arrangements consisted of and were being used for. This would improve public scrutiny and reinforce the provision in clause 58(4).
Amendment 5, page 47, line 36, leave out clause 59.
Amendment 6, page 48, line 16, leave out clause 60.
Amendment 172, in clause 60, page 49, line 29, at end insert—
“(10) All filtering arrangements under this Act shall not endure more than six months.
(11) The Secretary of State shall not use any power under Part 3 of this Act unless such power cannot be exercised under any other statutory provision.
(12) The Secretary of State shall ensure that the filtering arrangements are always used exceptionally and with regard to privacy rights.
(13) The Secretary of State shall from time to time consider the proportionality and necessity of all filtering arrangements in place.
(14) The Secretary of State shall terminate any filtering arrangements which are not proportionate or necessary.”
This amendment requires filtering arrangements to be renewed every six months; makes them a power of last resort; requires assessment of necessity and proportionality; requires termination of arrangements which are not truly needed.
Government amendments 49 and 50.
Amendment 143, in clause 68, page 54, line 14, leave out “not”.
Amendment 144, page 54, line 15, at end insert
“unless an application without such notice is required in order to avoid prejudice to the investigation.”
Amendment 145, page 54, line 15, at end insert—
“( ) Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply to an application for an order under this section as if it were an application for an order under that Schedule.”
This amendment seeks to ensure that the same level of protection is provided for journalists’ sources under the Bill as is currently provided in PACE.
Government amendments 51 and 52.
Amendment 300, in clause 73, page 58, line 33, at end insert—
“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
An amendment to introduce a public interest defence for disclosures regarding the obtaining of communications data.
Amendment 207, page 205, line 6, leave out schedule 4.
New clause 26—Retention of communications data—
“An operator who has not been designated as the operator of an electronic communications network or service according to section 34 of the Communications Act 2003; or whose service has fewer than 50,000 subscribers, shall not be required to comply with a retention notice under Clause 78.”
The new clause excludes the providers of rural or community access communications services and small service providers from the obligation to collect and retain data, in accordance with policy statements made by the Home Office.
Amendment 328, in clause 78, page 61, line 5, leave out “Secretary of State” and insert “Judicial Commissioner”,
See amendment 350.
Amendment 329, page 61, line 5, after second ““notice”)” insert
“on an application made by a designated senior officer at a relevant public authority”.
See amendment 350.
Amendment 330, page 61, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 331, page 61, line 9, at end insert—
“(1A) A notice may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within section 53(7).”
See amendment 350.
Amendment 332, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 3, page 62, line 22, leave out “therefore includes, in particular” and insert “does not include”.
Amendment 294, page 62, line 23, at end insert—
“(10) A retention notice must not require any data which is, or can only be obtained by processing, an internet connection record to be retained for any purpose other than the purpose specified in section 54(4).”
An amendment to restrict the retention of internet connection records.
Amendment 333, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 334, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 336, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner” on both occasions.
See amendment 350.
Amendment 337, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 338, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 339, page 63, line 9, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 340, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 341, page 63, line 19, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.
See amendment 350.
Amendment 342, page 63, line 24, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.
See amendment 350.
Amendment 343, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 470, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 471, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 344, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 345, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 346, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 347, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 348, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 350.
Amendment 350, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.
These amendments provide that judicial authorisation is required for retention of communications data. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising retention of communications data.
Amendment 301, in clause 84, page 65, line 26, at end insert—
“(4A) Subsections (2) and (3) do not apply to a disclosure made in the public interest.”
An amendment to introduce a public interest defence for disclosures regarding the retention of communications data.
New clause 15—Review of operational case for bulk powers—
“(1) The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operational case for the bulk powers contained in Parts 6 and 7 of this Act.
(2) The independent reviewer must, in particular, consider the justification for the powers in the Act relating to—
(a) bulk interception,
(b) bulk acquisition,
(c) bulk equipment interference, and
(d) bulk personal datasets.
(3) The independent reviewer must, so far as reasonably practicable, complete the review before 30 November 2016.
(4) The independent reviewer must send to the Prime Minister a report on the outcome of the review as soon as reasonably practicable after completing the review.
(5) On receiving a report under subsection (4), the Prime Minister must lay a copy of it before Parliament together with a statement as to whether any matter has been excluded from that copy under subsection (6).
(6) If it appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest or prejudicial to national security, the Prime Minister may exclude the matter from the copy of the report laid before Parliament.
(7) The Secretary of State may pay to the independent reviewer—
(a) expenses incurred in carrying out the functions of the independent reviewer under this section, and
(b) such allowances as the Secretary of State determines.
(8) The independent reviewer shall complete further reviews on a five-yearly basis and the provisions of this section other than subsection (3) shall apply.
(9) In this section ‘the independent reviewer of terrorism legislation’ means the person appointed under section 36(1) of the Terrorism Act 2006 (and ‘independent reviewer’ is to be read accordingly).”
This amendment provides for an independent review of the operational case for the bulk powers in the Bill, and further periodic reviews, to be undertaken by the independent reviewer of terrorism legislation.
New clause 17—Review of the Operation of this Act—
“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.
(2) In subsection (1) ‘the initial period’ is the period of 1 years and 6 months beginning with the day on which this Act is passed.
(3) Subsequent reports will be prepared every 2 years after the first report in subsection (1).
(4) A copy of the report is to be laid before Parliament, with provision made for a debate on the floor of both Houses and then approved by resolution of each House.”
Because the Bill deals with National Security and changing technological capabilities, it should be subject to greater scrutiny by both Houses. This amendment will call for an Independent Review to take place and be approved by Parliament within 2 years of the Bill becoming law and then every two years.
New clause 22—Primacy of judicial commissioner’s approval—
“No authorisation sought for a warrant to intercept or obtain or examine primary or secondary communications data, whether targeted or in bulk, under this Act may be considered by a Minister unless it has first been approved by a Judicial Commissioner.”
New clause 25—Review of the Operation of this Act—
“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.
(2) In subsection (1) ‘the initial period’ is the period of 4 years and 6 months beginning with the passage of this Act.
(3) Subsequent reports will be prepared every 5 years after the first report in subsection (1).
(4) Any report prepared by the Independent Reviewer must be laid before Parliament by the Secretary of State as soon as the Secretary of State is satisfied it will not prejudice any criminal proceedings.
(5) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), both his expenses and also such allowances as the Secretary of State determines.”
This new clause provides that the review of the operation of the Act shall be carried out by an Independent Reviewer.
New clause 27—Protection for journalistic sources, materials and activities—
“(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 to 7 may not be used to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with information, material or data—
(a) of, or concerning the activities of, journalists, or
(b) if the purpose of so doing is to obtain information identifying a journalistic source.
(2) The exceptional circumstances referred to in subsection (1) are—
(a) the case is one of great emergency,
(b) immediate action is necessary, and
(c) the relevant investigatory powers under the regimes provided by Parts 2 to 7 can be used lawfully having regard to the provisions thereof.
(3) In any case where the regimes provided for by Parts 2 to 7 are disapplied by subsection (1), any person who could otherwise have sought to use one of the investigatory powers specified therein may apply to a judge for an order allowing that person to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with such information, material or data in a way provided for by Parts 2 to 7.
(4) An application for an order under subsection (3) shall be made on notice to the journalist or journalists affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.
(5) Paragraphs 7 to 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 of the Police and Criminal Evidence Act 1984.
(6) Criminal Procedure Rules may make provision about proceedings under this section where the judge determines that an application without such notice is required.
(7) A judge may only make an order under subsection (3) if the person making the application has convincingly established that—
(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention,
(b) there is an overriding public interest necessitating the order,
(c) reasonable alternative measures to the order do not exist or have been exhausted, and
(d) the order is proportionate to the legitimate aim or aims being pursued.
(8) The costs of any application under subsection (3) and of anything done or to be done in pursuance of an order as a result of the application shall be in the discretion of the judge.
(9) In this section—
(a) ‘source’ means any person who provides information to a journalist;
(b) ‘information identifying a source’ includes—
(i) the name and personal data as well as voice and image of a source;
(ii) the factual circumstances of acquiring information from a source by a journalist;
(iii) the unpublished content of the information provided by a source to a journalist; and
(iv) personal data of journalists and their employers related to their professional work;
in so far as this is likely to lead to the identification of a source.
(c) ‘the Convention’ means the European Convention for the Protection of Human Rights and Fundamental Freedoms; and
(d) ‘judge’ means a circuit judge or judge of the High Court.”
Amendment 206, page 172, line 24, leave out clause 222.
See new clause 17.
Amendment 494, in clause 223, page 173, line 18, leave out paragraph (i) and insert—
“(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”.
This amendment clarifies that the definition of communications data should apply to the providers of the relevant telecommunication services, rather than allowing an organisation to be required to provide data about services it does not provide.
Amendment 496, in clause 225, page 177, line 27, at end insert—
“‘national security’” means the protection of the existence of the nation and its territorial integrity, or political independence against force or threat of force”.
This amendment would provide for a definition of national security under “General definitions”, to apply throughout the Bill.
Amendment 495, page 177, line 36, at end insert—
“‘professional legal adviser’ means a person who is—
(a) an Advocate
(b) a Barrister
(c) a Solicitor.”
This amendment provides a definition of a “professional legal Adviser” which is important for clarification in relation to Clauses 25, 100, 135 and 171.
Stephen McPartland
I speak in support of all the amendments that I have tabled in this group. First, new clause 18 and amendment 207 are designed to try to restrict the powers in the Bill to the intelligence agencies and law enforcement only. Schedule 4 currently includes the Food Standards Agency and the Gambling Commission, and I am not clear what evidence there is for including those organisations and granting them access to such intrusive powers when other organisations will not have that access.
The Bill gives incredibly wide-ranging powers and there is clear nervousness about that on both sides of the House. I completely respect the integrity of the security services and the police, but a lot of the fear seems to stem from the behaviour of some local authorities in the past and how they have used anti-terrorism powers to spy on people to see whether or not they have been recycling correctly and so on. As a result, those local authorities are not included in the Bill.
Let me give an example from Hertfordshire. The child protection unit of Hertfordshire County Council does not have access to communications data or the powers in the Bill in order to catch paedophiles, but the Gambling Commission and the Food Standards Agency would do so. I am unclear why a body that we would want to have access to such powers so that it can catch paedophiles and break up rings around the world cannot have access, when organisations such as the Gambling Commission or Food Standards Agency can have access.
I want to understand that difference. In the oral evidence sessions, when Ministers were questioning witnesses and when witnesses were providing evidence, there was a lot of talk about intelligence agencies, paedophilia and the problems in that regard. Ministers made it clear that a range of organisations had made robust cases to be included. The amendments are intended to tease out of Ministers why those cases were accepted when others were not. Frankly, I would much rather that Hertfordshire County Council’s child protection unit had access to some of the powers in the Bill than the Food Standards Agency, the Gambling Commission or some other organisation. The purpose of my amendment is to try to identify why we are where we are at the moment.
The Solicitor General (Robert Buckland)
My hon. Friend and I have indeed spoken about these matters in some detail. I recognise his abiding concern and that of others with regard to this issue, which is why I will commit to publishing a detailed case for the minor public authorities ahead of these provisions being further considered in the other place. I hope that gives him some reassurance about the points that he has consistently raised.
Stephen McPartland
I am grateful to the Solicitor General. That is evidence of the work of the two Ministers over the past 12 months in negotiations with me and Opposition Members throughout to try to make the Bill workable for all of us. As I said, all my amendments are probing amendments and none are designed to be pressed to a vote. Their purpose is to gain information. I accept the Solicitor General’s undertaking and thank him.
Andy Burnham (Leigh) (Lab)
This final group of amendments covers three of the seven substantial concerns that I set out in a letter to the Home Secretary after Second Reading: first, protection of journalistic material and sources; secondly, the definition of internet connection records, and the threshold for their use; and thirdly, the independent review of the operational case for bulk powers. Let me take each in turn.
I will deal with journalistic material and the protection of sources briefly, as the matter was debated at length yesterday. Protecting the ability of whistleblowers in private or public sector organisations to speak to journalists without fear of identification is one of the important checks and balances on state and corporate power. Many journalists and the National Union of Journalists have real concerns that clause 68 weakens the existing protections in law for journalistic sources operated under the Police and Criminal Evidence Act 1984. They point to an incident in 2014 when police secretly accessed the mobile phone records and call data from a national newspaper, bypassing the PACE protections. Rightly, there are now worries that that has set a new precedent. Furthermore, they feel that the Bill might be about to enshrine that new precedent in law.
Under PACE, journalists are notified when the authorities want to access material and sources, so that they have the ability to challenge that in open court. The worry is that the Bill removes those protections. The National Union of Journalists makes the point that there is no real difference between physical notebooks and communications data held electronically; both could reveal the identity of a source. Labour shares those concerns; they were ably raised by my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in Committee, and they were also raised on Second Reading.
The Government have gone some way towards addressing our concerns, tabling amendments 51 and 52, which we welcome. The amendments will ensure that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists and that they must ensure that that is in keeping with wider and more general privacy points. That is a significant move. It takes points that would otherwise have been in codes underpinning the Bill and puts them on the face of the Bill.
Labour will accept these amendments, but we will do so while being clear that they do not go far enough. Indeed, they cover only the award of warrants, not general access to communications data. We therefore support the amendments tabled by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) on behalf of the Joint Committee on Human Rights—amendments 143 to 145—which seek to extend the same level of protection to journalists as is currently the case under PACE.
We accept that this is a difficult area to get right, particularly when the definition of who is and who is not a journalist is changing in the digital world. We accept the difficulty facing Ministers. However, we think that the general principle, enshrined in PACE, of allowing journalists to challenge in open court any attempt to access material that could reveal sources is a good one. It would allow those public interest arguments to be heard and tested in court. We hope that the Government will today commit to working with us and the NUJ to find a wording that in the end does the job.
Mr John Hayes
The right hon. Gentleman has made his case in a measured way. He acknowledges that it is difficult to define journalists because the modern media include many bloggers who are part time, occasional and so forth. However, he is absolutely right that a solution needs to be found, and I am happy to say that we will look at this issue with him and others in greater detail as the Bill enjoys its passage through this House and the other place.
Andy Burnham
I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.
Joanna Cherry
I and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) have added our names to the amendments tabled to clause 68 by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), and we will give them our support if they are pushed to a vote. However, does the right hon. Gentleman agree that it is regrettable that the opportunity has been lost at this stage to have uniform protection across the face of the Bill for communications with journalists, lawyers and parliamentarians?
Andy Burnham
I made a similar point yesterday, when I said that it would have been helpful had we made more progress on these issues, and perhaps I can push the Minister on this, because I know he is meeting the Law Society and the Bar Council later this week.
The truth is that this raises quite complex issues. With all three professions, a slightly different set of issues arises, and we should not rush to legislate. We should move on the basis that we know what we are trying to achieve, which is to protect the ability of the public to go to an MP without fearing that there is any compromise on a private discussion. We want legal privilege—the privilege that belongs to the client—to be protected. We also want journalists to be able to protect their sources, as they want to do. If we work with the Government on that basis in good faith, I believe that we will be able to come to the right position.
Mr Alistair Carmichael
May I, through the right hon. Gentleman, tell the Minister that, when he says he will speak to people in the House and others, those others really must include the National Union of Journalists?
Mr Carmichael
Those are the people who will be better qualified than anyone else to define what a journalist is, and they do have something of a pedigree—going back to 1936—in terms of the definitions.
Andy Burnham
The right hon. Gentleman makes an important point, which I saw was accepted on the Government Front Bench. He has tabled a detailed amendment on this issue, and he is right to do so and to press the Government on this. All of us have to apply our minds to getting these definitions right for all three professions. There is still an open question, as we discussed yesterday, about Members of Parliament and the right level of scrutiny for any warrant against them, but there is equally more work to do on other fronts.
We should not pass a Bill that weakens these professions—as I said yesterday, this is not about preserving the special status of the individuals who work in them, but about protecting the public and their ability to raise issues through those individuals.
Mr Hayes
I have committed to writing to the NUJ and the Society of Editors, which I have met already. I have been waiting to do so until today’s debate so that my letter can be informed by it. However, I will happily write to them tomorrow, very much on the basis of taking these matters forward.
Andy Burnham
I very much appreciate what the Minister has said. I think that any colleague in any part of the House who has read the NUJ’s briefing for today’s debate will struggle to disagree with anything in it. If we want this Bill to leave Parliament with a high degree of consensus across society, it is right that these professional bodies feel, in the end, that the Bill is something they can support. That is a prize worth working for. Given his comments, I get the feeling that the Minister agrees.
Mr John Hayes
I am sorry to interrupt the right hon. Gentleman in his flow. I have listened carefully to what he has said, and it has been the subject of discussion, as he knows, in Committee and elsewhere. I do not want to anticipate my hon. and learned Friend the Solicitor General in his summing up, and I mean him no discourtesy, but as the Bill Minister and the Security Minister, I commit to doing what the right hon. Gentleman asked. I do so because it is really important that we have a threshold that works, particularly on ICRs.
ICRs are, as the right hon. Gentleman says, qualitatively different. He is right about cases of harassment, and so on and so forth, which is why the matter is challenging and complex. He has made a powerful case here, following the powerful case made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), and I will bring the matter back to the House during our proceedings on the Bill in the form of an amendment, in the spirit that he has described.
Andy Burnham
I said at the start that I was looking for considerable comfort, and I think I have just received it from what the Minister has said. To be clear, I was saying that there should be a threshold of six months for the use of communications data, and a higher threshold on top of that for internet connection records. As the Minister just acknowledged, there is a qualitative difference between the two. If that is what we are agreeing, and if we are also agreeing that there should be no restriction on the use of internet connection records for the other serious purposes that I have outlined, the Opposition can probably move forward on that basis without pressing our amendments to a vote.
This is the area in which the Bill has the ability to lose public trust if we do not get it right, because it could affect every single citizen in the land. I am sure that as constituency MPs many of us have dealt with situations where an individual falls out with the police at a local level, and they perceive that they are being investigated for all kinds of things and that all aspects of their lives might be turned upside down. We have to put in place appropriate protections that would not allow personal information to be handed over freely in relation to more trivial offences.
Suella Fernandes
The provisions on ICRs are designed to resolve two problems. First, our law enforcement and security personnel cannot carry out IP address resolution—identifying which device is communicating with which device—without the new powers. Secondly, even with the originating and destination IP addresses, it may not be clear which website or communications service has been accessed. The evidence from the professionals to the Joint Committee was clear: ICR retention is imperative to enable IP address resolution for investigations.
Andy Burnham
I am grateful to the hon. Lady for making a point that will enable me to be absolutely clear about what I am saying. I am not arguing against the retention of the data, as I think I made clear at the beginning. I am not arguing against ICRs per se. I acknowledge that they could be a very important tool. In an age when communications have migrated online and people have fewer voice telephone calls, this information could be crucial in detecting serious crime. I am saying that while we should legislate to allow the data to be held, we must also legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear. There is not a broad reasonableness or necessity test. What I am saying is that we need a very clear definition of what level of crime permits the authorities to access those records.
I believe that if we find that definition—I feel that the Minister has given a commitment that we will get it—it will enhance public trust in this legislation. In my view, it will knock out completely that lazy label of “snoopers charter”. That is why it is so important that the Government nail this point before the Bill concludes its passage.
Mr John Hayes
The right hon. Gentleman has looked at these matters very closely, as is illustrated by the fact that he has rightly said that there are some crimes, such as harassment, stalking and so on and so forth, that would not neatly fit into a simple category. He is also right that the threshold must be robust. This is not about minor crimes and it is not about snooping, as the less well-informed critics have sometimes described it. I have given the commitment that we will work with him and others during the passage of the Bill to move an amendment to address this issue. He was right to raise it today. He has asked for a commitment and he is getting one.
Andy Burnham
We have learned to admire the Minister greatly through this process, and we have learned that when he says something, it happens. I am reassured by the words that he has just put on the record.
If it helps—perhaps it does not, but I will say it anyway—I would favour quite a high test for ICRs, and significantly higher than six months. Alongside that, it might be possible to itemise the other individual occasions on which they could be used, be it online grooming or missing persons. The danger with trying to capture it all in a single time period is that we might open the net to other offences that we would not want to be included. I fully acknowledge that this is a complex area. That is why I want to give the Ministers leeway to see whether, working with us, they can find the right definition.
Dr Murrison
The Joint Committee spent a lot of time on ICRs and IP address resolution; then along came clause 222, which gave us some comfort because the matter can be reviewed in five years. Some of us are of the view that ICRs will not, in any event, prove to be as useful as we might hope and as Ministers certainly hope. The Danish experience was that they were not useful and their collection was therefore dropped. It is quite possible that that will come to pass here, and that in five years’ time we will review this matter. Does the right hon. Gentleman agree that clause 222 persuades some of us who are a bit doubtful about the utility and value of ICRs that we should allow the provision because it will be reviewed in five years’ time?
Andy Burnham
The review is clearly a good idea, but it is also a good idea to tighten the definition and the threshold now, because we need to ensure that there is a degree of public confidence in what is being done here. I fully accept that the review is important. The point is that although ICRs in themselves may not necessarily solve a crime, they may let the authorities know where to go to ask for more intrusive information. They will identify the app, service or whatever it is that is being used, which might allow further lines of inquiry.
I would not be casual about this point—not that I am suggesting the hon. Gentleman was being so. If we were to publish somebody’s 12-month website visiting record, which effectively is what an ICR is, it would reveal a large amount of information about them. It would give a pretty decent profile of what kind of person they were and some of the information could be highly personal. That is why I say that we need to legislate with great care in this area if we are to carry the public with us.
Mr Kenneth Clarke (Rushcliffe) (Con)
The right hon. Gentleman is making good progress in getting very welcome undertakings from the Minister to review this whole business, in particular on serious crime and on the creation of ICRs; will he confirm that his concern also extends to the accessing of communications data by a huge range of public bodies, including every local authority? When he is discussing this matter in the near future he will have better access than anyone else, or at least than most other people, so will his concern extend not only to defining serious crime but to looking at clause 53(7)? In that subsection, any crime is relevant, as is any occasion of preventing public disorder, which could extend to difficult neighbour cases. It also allows collection of data
“for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”.
It seems to me that the word “serious” should be put in all that, or else certainly some threshold should be. It is extremely all-embracing, and allows a district council anywhere to start getting access to communications data. Will he take those points into account as well?
Andy Burnham
I will certainly take the right hon. and learned Gentleman’s points into account. He is making the same case as we are in our amendments. To be clear, those amendments would create a general seriousness test for all communications data collection, which would have to be passed before any of those data could be released. The test created by my hon. and learned Friend the Member for Holborn and St Pancras in amendment 292 relates to offences for which the sentence is imprisonment for more than six months. We felt that that was proportionate. It begins to meet some of the right hon. and learned Gentleman’s concerns, as it would knock out some of the lower-level offences he has just described.
Given what the Minister has said, I do not intend to press that amendment to a vote, but it is the bottom line from where we start. On top of the general six months test for all communications data, we want a higher threshold for the more personal data in an internet connection record. I am glad that the right hon. and learned Gentleman intervened because we have now made that explicitly clear to the House.
I turn now to the independent review of the operational case for bulk powers, which allows me to finish on a more positive note. All the bulk powers in the Bill—bulk interception, bulk equipment interference, bulk acquisition, bulk personal datasets—give rise to privacy concerns because of the more indiscriminate way in which they might be used. That is why it is important that they are granted on the basis of what is strictly needed rather than what it would be helpful to have, a point made by the Intelligence and Security Committee in its extremely valuable report. The Joint Committee on the draft Bill also recommended that there should be an independent review of the bulk powers. It was a point upon which I laid great emphasis in my letter to the Home Secretary, and my hon. and learned Friend the Member for Holborn and St Pancras has done the same throughout the passage of the Bill.
We are extremely pleased that the Government have agreed to that request. We agree that David Anderson, the independent reviewer, is the right person to lead the review. I understand that, following correspondence between my hon. and learned Friend and the Security Minister, terms of reference have now been agreed and the review can start in earnest. It will be concluded in time to inform proceedings in the other place. Crucially, it will consider the necessity of the powers and whether the same result could have been achieved through alternative methods. It will also have a balance of security expertise and human rights expertise. This is a significant move by the Government and will ultimately help build public trust in the Bill.
To hark back briefly to the debate on the last group of amendments, it is too early to say what we will do on the back of the review. We will have to see what it concludes, but our working assumption is that it will be incumbent on Members on all sides of the House to respond to the review and if necessary reassess their position on the back of it.
Mr Alistair Carmichael
Does the right hon. Gentleman share my concern that at the Dispatch Box the Security Minister initially said the review would focus on necessity, but when winding up the last debate would not concede in any way, shape or form that the powers were not necessary? Does that not raise some concern in the right hon. Gentleman’s mind?
Andy Burnham
There is an exchange of letters between the Security Minister and my hon. and learned Friend the Member for Holborn and St Pancras, which I hope is in the public domain, and which I believe allays the fears of the right hon. Member for Orkney and Shetland (Mr Carmichael). To be clear, it was a sticking point for Labour that the review had to consider necessity and not just utility. That is enshrined in the terms of reference, so I hope I can reassure him on that point.
Clearly, there is further to go on journalistic material and internet connection records, although it appears from what the Minister has said this afternoon that we are heading in the right direction. I stress again that progress on the ICR points that I have made are a personal red line.
That said, I thank the Home Secretary, the Solicitor General and the Security Minister for the constructive way in which they have approached our discussions. Because of the consensus we have been able to find, the legislation is more likely to succeed and to stand the test of time.
Mr Grieve
I say to the right hon. Member for Leigh (Andy Burnham) that, as far as the review is concerned, I have no doubt that the Intelligence and Security Committee will respond positively and provide input if David Anderson wants to discuss those matters with us. I certainly look forward to seeing his conclusions in the review on bulk powers, which I hope will be helpful to Parliament in identifying what improvements we can make.
Amendment 13, which is in my name and those of my colleagues on the Intelligence and Security Committee, concerns clause 54, on the additional restrictions on the grant of authorisations of communications data. In the Committee’s report into privacy and security published in March 2015, we recommended that, just like the police, the intelligence agencies should always ensure a separation of roles between those requesting access to communications data and those who provide the authorisation. Previously, that has not been the case. I am grateful that the Government accepted that principle, and that it is enshrined in clause 54(1). That is an important safeguard that the Government have added to the Bill.
I hope the Minister will forgive me, but notwithstanding that, the Committee, having looked carefully at the Government’s amendment, believe that, although it is 90% of the way there, 10% might do with some improvement. The Bill provides that there may be exceptional circumstances in which a separation is not required. I entirely accept that that is the case. There will be a small and probably very infrequent number of such examples where there is an imminent threat to life, which is provided for in clause 54(2) and (3). However, clause 54(3)(b) simply cites
“the interests of national security”,
which I should tell the Solicitor General is rather a broad concept, particularly as it features in all sorts of places in the Bill and can be extended to encompass almost anything that falls within the agencies’ remit.
The Committee believe that it is too vague and potentially too broad. Therefore, in amendment 13, we have proposed a measure that tries to narrow the matter down without in any way affecting operational effectiveness. The amendment would limit exceptional circumstances to those where the operation is so sensitive that knowledge of it must be kept to an absolute minimum, or where there is an unplanned, time-critical but very significant opportunity to obtain information that might be lost owing to any delay in obtaining a separate approval.
The Committee very much hopes that the Government are in a position to accept the amendment.
The Solicitor General
There is more debate to be had about whether the phrase “absolute minimum”, as opposed to plain “minimum”, should be used, but I am happy to assure my right hon. and learned Friend that, in principle, we accept the amendment. We will commit to returning with a technically adequate amendment in the other place.
Mr Grieve
I am grateful to the Solicitor General for his comments and I will not take up any more of the House’s time. I think that “minimum” might well be acceptable. The key thing is the next subsection, which I think tries to encapsulate very clearly the sort of exceptions we are talking about.
Joanna Cherry
The right hon. and learned Gentleman and I may be on different sides of the House, but I have the highest regard for the clarity and erudition with which he approaches matters. The Intelligence and Security Committee, which he chairs, said in its recommendation I on the draft Bill that the Bill did not make it clear that getting internet connection records
“through a specific request to a Communications Service Provider under Part 3”
is not the only way in which the agencies may have access to internet connection records. He said that that was “misleading” and that
“the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data”
to internet connection records. He said the Bill should make that clearer. Has the Bill been amended to his satisfaction on that point?
Mr Grieve
The hon. and learned Lady raises a relevant point. The Bill has not been amended, but we received sufficient assurances from the Government that the way in which the system would be operated, in terms of the internal workings of the agency, would be such as to meet the concerns we expressed. Indeed, the Solicitor General or the Minister may be in a position to confirm that. On that basis, despite the fact that we raised the point, we did not table an amendment on it. The hon. and learned Lady is quite right to pick it up. I have not wanted to detain the House for too long, otherwise I could take her through a list of areas on which, having had further discussion, we decided amendments were not required. She is right to focus on that and I hope very much the Minister is able to provide some confirmation. I am grateful to her for having raised it.
Gavin Newlands
Along with my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), I represented the SNP in Committee. I am grateful for the opportunity to take part on Report.
I have many concerns about the Bill, and my hon. Friends have already outlined a number of areas where the SNP is sceptical about the Government’s case. This is a wide-ranging and complex Bill and time constraints prevent me from speaking to everything I would like to. However, I will focus my contribution on communications data and internet connection records. The measures in the Bill are not limited to internet access, email or telephony and include, explicitly, communication without human intervention. As it stands, the definition of communications data can tell us an awful lot about someone’s life. Stewart Baker, former senior counsel to the NSA in the United States, states that the content of a person’s communications data is redundant when we consider the amount of metadata that is already collected.
Communications data can be key in obtaining leads, solving crimes or preventing crime. However, I have a real issue with the length of the list of public bodies that would be able to access such personal and sensitive information on an individual without sufficient oversight in place. As we heard at the end of the previous debate and again at the start of this debate, from the hon. Member for Stevenage (Stephen McPartland), schedule 4 currently provides for a list of bodies that would be able to access retained data, including a range of regulatory bodies. Among them are the Food Standards Agency, the Gambling Commission, the Office of Communications, and the Health and Safety Executive. No fewer than 47 bodies are listed, a reflection of the tightly drawn nature of the Bill—or otherwise. That suggests that access to communications data may be granted for a range of purposes, which will almost certainly be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.
It is only appropriate that the correct level of protection and oversight is in place. The SNP tabled amendments 320 to 327 and 328 to 350 to ensure sufficient judicial oversight. The relevant public bodies must seek a warrant from a judicial commissioner, replacing the Secretary of State in the process where necessary. They also ensure that a threshold of reasonable suspicion would be necessary before a warrant is issued.
The arguments on judicial warrantry have already been rehearsed at length and I do not intend to detain the House long on this issue, particularly as my hon. and learned Friend the Member for Edinburgh South West speaks with a lot more authority on that subject than I do. Suffice it to say, I think hon. Members should pause and reflect on the lack of oversight. Decisions concerning necessity and proportionality can only be made properly by someone who is truly independent from the operations of the organisation.
Clause 54 contains the first mention of internet connection records. Subsection (6) defines ICRs in such general terms as to render the definition pointless. In that regard, I welcome some of the comments from the shadow Home Secretary and the Minister in their courting across the Dispatch Box a little earlier.
Mr Alistair Carmichael
The point about the arm’s- length retention gets to the heart of the matter. The concerns expressed by the Opposition Front-Bench team all surround the question of a threshold, but the threshold will never be of any significance to those out there waiting to hack into this information, as we have seen only too clearly with the recent experience of TalkTalk.
Gavin Newlands
I could not agree more with the right hon. Gentleman. I will come to that point shortly.
The question of who retains the information is secondary to the fact that it will be retained and accessible in the first place. The Government have, true to form, merely contracted out data retention to the private sector. Many people share unease about the security of this information. As we have seen recently, private providers are susceptible to sophisticated hacking operations. The consequences, should this information get into criminal hands, are deeply worrying. Indeed, the Joint Committee on the Draft Communications Data Bill shared similar concerns when it said that storing weblog data, however securely, carried the risk that it might be hacked into or fall accidently into the wrong hands.
Andy Burnham
I am listening carefully to what the hon. Gentleman is saying, and he is obviously aiming some of his comments in Labour’s direction. In a world where people are making fewer voice telephone calls—and if he is proposing that he would not want to collect this data—how would he propose the authorities go about locating a missing child in the early hours after the disappearance?
Mr Speaker
Order. I wish to say, before the hon. Gentleman develops his case, that although I absolutely understand that he speaks for his party from the Front Bench and is entitled to develop his case, I would gently point out that another seven Members wish to contribute, several of whom sat on the Committee, and I most certainly wish to include the Chair of the Joint Committee on Human Rights. It is not a criticism, but I am sure he will tailor his contribution to take account of that fact.
Mr David Winnick (Walsall North) (Lab)
On a point of order, Mr Speaker. Will there be time for us to have a Third Reading debate and for those of us opposed to the Bill to show our opposition?
Mr Speaker
It depends on how many Divisions there are. As the hon. Gentleman will know, only one hour is allocated for Third Reading, and votes will eat into that, so it is a function of the demand for votes. I am sorry that I cannot give him a more precise answer, but I always have his interests uppermost in my mind, and I will try to accommodate him and others.
Mr Alistair Carmichael
Further to that point of order, Mr Speaker. The House agreed a timetable motion yesterday, since when substantial amendments and concessions have been made by those on the Treasury Bench. The Bill is very different now. Can you confirm for me that it would still be within the Government’s competence to bring forward an amended timetable that would allow us to have Third Reading on another day?
Mr Speaker
The answer to the right hon. Gentleman, who has considerable experience in these matters, not least from when he was on the other side of the fence, as a very senior Whip, is that it is always open to the Government to table an alternative programme motion. That is not a matter for the Chair. The amendments were, of course, all on the paper at the point at which the House agreed the programme motion.
I ought just to say for the avoidance of doubt that the hon. Gentleman who has the floor is not in any way being criticised; I simply wanted to make him aware of the level of demand. I think we ought now to proceed. I would happily sit here all night for colleagues to debate these matters, but I rather doubt there would be the same enthusiasm among Government Whips for such a proposition.
Gavin Newlands
Thank you very much, Mr Speaker; I have almost forgotten what the intervention was—[Interruption.] I do not doubt that, but to answer it, we do not know what ICRs are at the moment. They are not clearly defined—the shadow Home Secretary made that point himself earlier; nor do we know how effective they will be. People in the industry tell me that current technology, such as Tor, virtual private networks and what have you, may render them useless. We do not know what ICRs are at the moment, so I have to be honest with the shadow Home Secretary: I do not have all the answers.
Joanna Cherry
My hon. Friend sat on the Bill Committee with me and will remember that we heard evidence that if, for example, he wanted to see whether a missing child had been on Facebook, all that the internet connection record would show was whether they had been on Facebook, not whom they had been in contact with. Does he therefore agree that the utility of internet connection records for tracing missing children, which we all recognise is of the utmost importance, is perhaps being rather overblown?
Gavin Newlands
I wholeheartedly agree with my hon. and learned Friend.
Before I was intervened on the first time, I was saying that the Joint Committee on the draft Communications Data Bill said that
“storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people’s interests or activities could be drawn.”
It is clear that the intelligence services and the police need powers that befit the digital age in order to keep us safe and to catch perpetrators. However, when seeking to introduce powers as intrusive such as ICRs, it is incumbent on the Government to ensure that their case is watertight. As my hon. and learned Friend said in Committee, we very much hope to be an independent country writing our own security policy, so we do not take our opposition to such measures lightly.
In drafting such a proposition, with such a loose definition, the Government are asking us all to trust them and to sign a blank cheque to allow the wide use of such powers without knowing what their full impact, costs or consequences will be. The Home Office has said that companies will be reimbursed for the additional costs placed on them, but that commitment does not appear in the Bill. The Government have earmarked £175 million to reimburse companies for the costs of meeting their new responsibilities. However, most in the sector believe that is a vast underestimation of what the true costs will eventually amount to. Owing to uncertainty about the extent and definition of ICRs and the extension of communication service providers that will be affected by the proposed provision, the cost is difficult to estimate, but industry figures have told me that they expect it to be anywhere between £1 billion and £3 billion.
I appreciate that the Minister, in a letter to the Committee, reiterated the Government’s intention to bear the cost of implementation, but without clearer information we cannot expect Parliament to sign a blank cheque. Between £175 million and £3 billion is a rather large range, and at a time when disabled people are losing benefits and the WASPI women cannot get the pension they were promised, this seems a rather anomalous and large black hole in potential Government spending. I have said in the past that the Government know the cost of everything and the value of nothing, but in this case they do not even know the cost.
This is a global problem and as such requires a global solution, and it is important that we reflect on what other countries have done to address the issue and that we learn any lessons from their experiences. It is unfortunate, therefore, that a similar scheme of logging data in Denmark has recently been abandoned. That scheme operated for seven years, and although I accept that there were differences in that scheme, there were many similarities. Upon its abandonment, the Danish security services expressed their view about the difficulty of being able to make proper and effective use of the large amount of data that had been gathered. It seems that, instead of spending their valuable time locating criminals, the security services will spend most of it working on spreadsheets and filtering out the useless from the useful. It should be noted that the Danish ICR model was proving too expensive and the cost spiralled out of control, that Australia considered the proposal but decided not to pursue it, and that, as we have heard, the United States is rescinding many of its intrusive powers and moving in the opposite direction.
It is for those reasons that we believe the case for ICRs has simply not been made. The Government have failed to convince us, and those working in the industry, that ICRs are necessary, proportionate and in accordance with the law. We tabled an amendment to remove them from the Bill, but it was not accepted, which leaves us no option but to vote against the Bill in its entirety. That is not a step that we take lightly, but, ultimately, it is a necessary step.
In the event that we are unsuccessful in bringing down the Bill, we will still attempt to ameliorate aspects of it in order to protect smaller companies, especially those that supply lifeline and low-profit services to rural communities. New clause 26, which I tabled along with SNP colleagues, would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data. I have mentioned the deep concern in the sector about the expense that the Bill will impose on industry. I am sure that the Government will not want to put any businesses in a perilous situation, particularly those that operate with smaller cash flows and tighter margins in rural Scotland in order to provide a vital service for their local communities.
The Committee was provided with written evidence stating that smaller internet service providers were still subject to the same demands as the much larger organisations that operate on the world stage. Organisations such as HUBS are supplying vital internet connections to some of the most remote communities. If the Government railroad these clauses through the House without proper regard for the impact they will have, they will seriously endanger those small businesses and restrict internet use for some of our rural communities.
Gavin Newlands
I am afraid not, because I do not have time. Plenty of other Members want to speak.
You will pleased to hear, Mr Speaker, that I am nearing the end of my speech. [Hon. Members: “Hear, hear.”] Thank you.
We live in a digital age. I therefore welcome the Government’s proposed digital economy Bill, and, indeed, the Chancellor’s commitment to match the Scottish Government’s commitment to universal broadband provision. The digital economy Bill is intended to make the United Kingdom a world leader in digital provision. However, according to many in the industry, this Bill will completely undermine that goal before the draft Bill has even been printed.
It is only right and proper for the Government to consider and propose new powers that our security agencies can use to keep us safe, but in many parts of the Bill the Government fail to make the case that the powers they want to introduce will be effective, are necessary, are in line with our right to privacy, and cannot be challenged in the courts. It is for those reasons that the SNP are still unconvinced of the merits of the Bill, and will vote against its Third Reading later this evening.
Will Quince (Colchester) (Con)
I rise to support new clause 19, which stands in my name. It is a scoping amendment, which I do not intend to press. A large number of amendments have been tabled so I will be extremely brief, but I want to pay tribute to my hon. and learned Friend the Solicitor General, who has been incredibly receptive to the concerns that I have raised throughout this process.
We all remember the examples of local authorities using powers inappropriately, whether that has involved rummaging through our bins or spying on paper boys to determine whether they have the right to work. I welcome the steps that the Government have taken to try to address that, including the creation of a new criminal penalty for the misuse of these powers. However, I believe that more needs to be done to ensure that the wider public can be confident that we will not see a repeat of history, and will not see councils misusing the powers in the future.
New clause 19 would introduce a requirement that when a judicial commissioner approves an authorisation for telecommunications data for a designated senior officer of a local authority, that senior officer must notify his or her chief executive before the authorisation has taken effect. I believe that that will help for two reasons. It will discourage over-zealous officers from applying for authorisations if they know that their chief executives will see those authorisations before they take effect, and, in the event that a council officer is found to have misused the powers, the chief executive will be accountable. Chief executives will never be able to say that they did not know what was happening in their authorities.
The Solicitor General
I have listened carefully to what my hon. Friend has said. The Government wish to consider the matter further, and return to it in the other place. I hope that that gives my hon. Friend some reassurance.
Will Quince
I am greatly comforted by that response, and, in the interests of time, I am happy to sit down now.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
I rise to support amendments 143, 144 and 145, which were tabled in my name and those of the other members of the Joint Committee on Human Rights and relate to the protection of journalists’ sources. Since they were tabled, they have been supported by Labour’s Front Bench and the SNP, for which I am grateful.
Yesterday, we considered additional protections for MPs and lawyers and the question of legal professional privilege. Journalists are in the same group. We extensively considered protections for everybody against the abuse of power and the invasions of privacy by the state, which is right, but there are particular issues about protecting a part of the constitution from abuses of power by the Executive. The legislature obviously holds the Government to account, so it is wrong for the state to abuse its power to prevent us from doing that. The same goes for lawyers and the rule of law. Journalists are in a parallel situation in that it is vital in our democracy that the media are free to hold the Government to account, which is an important aspect of the right of freedom of expression that is guaranteed in article 10 of the European convention on human rights.
I appreciate from the start that there is a difficulty here. It is easy to work out what a lawyer is. It is easy to work out what an MP is. It is not quite so easy with journalists. Some people are evidently journalists and some people are evidently not journalists, but some people might or might not be journalists, so I say “Good luck” to the Solicitor General with that one. However, that difficulty must be surmounted, because we must ensure that the press’s ability to go about their business and to hold the Government to account is protected.
The Solicitor General
The right hon. and learned Lady is absolutely right to talk about the difficulty of definitions, but we should be focusing on journalistic material. That is the question at hand and that is what the Bill addresses. Focusing on that might actually help us to come to a solution.
Ms Harman
It sounds as though the Minister is well under way to solving that problem, so that is encouraging.
My next point was considered by the Joint Committee on Human Rights and has been echoed throughout the House. We do not want the provisions in this legislation to contain less protection for journalistic material than the Police and Criminal Evidence Act 1984 did. That Act relates to a very different world and refers to the journalist’s notebook, whereas we are considering communications data, but a key point is that the relevant journalist or media organisation is given notice when a warrant is being applied for so that they can make representations as to why one should not be granted in order to protect their sources. We are not talking about journalists who are up to their necks in criminal activity—that is not the issue. The issue arises from applications for material that relates not to any criminal activity but to a journalist’s work. Can we ensure that journalists are put on notice, because of the special status of journalistic material, so that the authorising authorities have the benefit of hearing from journalists or media organisations before a warrant is granted?
I appreciate that the Minister has already responded to those issues and has put in additional protections, such as taking the non-statutory code and putting it on the statute, but the issue of notice still remains, which is why we tabled our amendments and why they have gathered support. I welcome the Minister’s confirmation that he will look further at the matter, but other members of the Joint Committee on Human Rights in the House of Lords, and many other Members of the Lords, will want to consider it. Nobody wants an unjustified fettering of the ability of the security services and the police to keep us safe. The point in the intervention of my right hon. Friend the Member for Leigh (Andy Burnham) was absolutely spot on. We are all in favour of the same thing here, but we must ensure that, at the end of the process, we have the right balance not only for journalists but in many other respects.
Victoria Atkins (Louth and Horncastle) (Con)
I shall speak to new clause 18 and amendment 207. I note that these are probing measures tabled by my hon. Friend the Member for Stevenage (Stephen McPartland), and I also note the assurances given by the Solicitor General. However, given the concerns raised by the SNP, I thought it may be helpful to give some examples of how the organisations in schedule 4 need these powers and how they contribute towards the criminal justice system in our country.
We are speaking about communications data, not about bulk warrants or intercept warrants; we are discussing the who, what and when of communications between suspects. The criminal justice system sees thousands of prosecutions brought each year by the organisations listed in schedule 4. The Department for Work and Pensions prosecutes benefit fraud, and I am sure we all support it on that. It conducted approximately 600,000 investigations last year, and communications data can be invaluable, particularly in dealing with conspiracies to defraud, in showing links between conspirators and the timing of their communications.
New clause 18 excludes one of the largest and most important investigating agencies: Her Majesty’s Revenue and Customs. It investigates a huge range of offences, from tax fraud to cigarette smuggling and the criminal exploitation of HMRC’s repayment system. The seriousness of some of these offences can be summed up in the offence that I prosecuted many times on its behalf: cheating the Revenue, which attracts a maximum sentence of life imprisonment. The Joint Committee heard evidence from HMRC that last year it made 10,000 requests for communications data, which supported 560 investigations, in cases involving a loss to the Treasury of £2 billion. If that is not a serious investigating organisation that deserves our help in investigating and prosecuting criminal activity, I do not know what is.
The injustice does not end with HMRC, and I will give just two more examples, as I am conscious of the time. The Financial Conduct Authority regulates the financial markets, and the banking, financial and insurance industries, among others. In a £10 million insider dealing fraud case, in which I was instructed, we were able to build an electronic reconstruction of a day in the life of an insider dealer. It went from the moment when a memory stick was inserted into a computer to download the price-sensitive information, to the handover of the stick to a co-conspirator at another bank, to the material being uploaded on to webmail and messages being sent out to the defendants to get trading on these stocks. The FCA operates in the digital world, by definition, and it made more communications data requests last year than 20 police forces that are cited in new clause 18.
The second example, mentioned by the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), is the Health and Safety Executive. It prosecutes employers who kill and maim employees and members of the public in the workplace. These are highly specialised cases, which could encompass any workplace, from building sites to chemical factories and care homes. Last year, the HSE conducted 3,280 investigations, resulting in 535 prosecutions in England and Wales.
I know that these are probing measures and that my hon. Friend the Member for Stevenage is raising important issues, particularly on access for child protection units and others, but we must not lose sight of the important role that many of these organisations play in the criminal justice system and their need for their power to prevent and detect crime.
Several hon. Members rose—
Mr Speaker
Order. I would like to call the Solicitor General no later than 5.48 pm, and there are three people whom I wish to accommodate before then—Members can do the arithmetic for themselves. We have just under nine minutes to go. I call Matt Warman.
Matt Warman (Boston and Skegness) (Con)
I rise to talk briefly about both journalists and internet connection records. I have heard an awful lot of comments about journalism, and I agree with all of them. Indeed, had the Government not moved some of the material from the codes of practice into the Bill, I might have struggled to support it. At every stage, we will struggle to construct anything useful unless we define what a journalist is, and I find it hard to see how that is possible. In this modern age, I am painfully conscious that, in some senses, we are all journalists ourselves. Almost all of us write columns for our local paper. Arguably, we could all be regarded as journalists simply because we commentate via Twitter on what is going on in politics. I struggle to see what more the Government can do—as much as I would like them to do it and as much as I would like to support new clause 27. Unless we come up with a workable definition of journalism, I struggle to see how we will make what I regard as genuinely very necessary and very helpful progress on a hugely important issue.
On the second point on internet connection records, it strikes me that although they have frequently been compared with a telephone record or an itemised phone bill, it is simply not a sensible comparison in the modern world when we make far fewer voice calls. That sense of an ICR telling us simply that a user has gone to Facebook misunderstands the fact that knowing that someone has gone to Facebook if they are a missing person, for example, allows us then to go to Facebook and make that crucial next step to find that person. Although an ICR does not tell us a huge amount of information, it tells us enough. We in this House have a duty to do everything that we possibly can in this regard and to bear it in mind that it is not us but communications providers who hold that information. I very much welcome what the right hon. Member for Leigh (Andy Burnham) said about having concerns about access, rather than about the principle of what I hope we can all agree is a potentially vital tool in this vital battle against both crime and missing persons.
Several hon. Members rose—
Mr Alistair Carmichael
I rise to speak to the amendments standing in my name, particularly amendment 3. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) said that the amendments tabled by the SNP that sought to remove internet connection records from the Bill had not been selected. I notice that he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) have also added their names to amendment 3. It was not my intention at the start of this debate, but I have heard so little by way of comfort from the Government Front-Bench team that I intend to press amendment 3 to a vote. It is surely unacceptable, at this stage in proceedings, that we still have no proper definition of what exactly is an internet connection record. Others have touched on that during the course of our debates.
It is 15 years to the day since I was elected at the 2001 general election. I have seen a few things in this House in that time, and one thing that I have learned to recognise is a well-rehearsed line exchanged between the two Front-Bench teams. I think we saw that when the shadow Home Secretary was getting his assurances from the Minister for Security. I have to say that he has got assurances which, frankly, miss the whole point. The assurances on threshold, for example, do absolutely nothing to address the problems that are inherent in the riskiness of retaining such data in the first place. I cannot improve on the definition or the expression that was used by the Joint Committee when it reported on the draft Bill. It said that the collection of internet connection records would be a
“honeypot for casual hackers, blackmailers, criminals large and small from around the world, and foreign states.”
David Anderson QC described the expanded data collection by internet service providers as “overstated and misunderstood”—to the point and understated. There is no other “Five Eyes” country in which operators have been forced, or are being forced, to retain similar internet connection data. That surely tells us all that we need to know. The case has not been made. It is always open to the Government to come back on some future occasion to make a case and to put these provisions in another Bill. They have not made the case, and the provisions should not be in this Bill.
James Berry (Kingston and Surbiton) (Con)
That was a very disappointing reaction from the right hon. Member for Orkney and Shetland (Mr Carmichael) to what I thought has been the very constructive way in which the right hon. Member for Leigh (Andy Burnham) has dealt with the Government both today and yesterday.
Chris Philp (Croydon South) (Con)
I want to speak briefly about clause 68, Government amendment 51 and amendment 145. Clause 68 is welcome and delivers the manifesto commitment to introduce judicial oversight of these investigatory powers over journalists. As the noble Lord Falconer has pointed out, no such protections exist under the Regulation of Investigatory Powers Act 2000. These new requirements for judicial consent by the commissioner are very welcome.
I very much welcome Government amendment 51, which explicitly acknowledges the public interest in protecting a journalist’s sources and makes it clear that the commissioner must weigh that against any other public interest, which must be overriding. I hope that gives the right hon. and learned Member for Camberwell and Peckham (Ms Harman) at least some comfort. Were we to adopt her amendment 145, I think the implication would be that the judgment would have to be made in open court, and given the difficult and potentially wide definition of journalistic material that now exists, that might impose a rather onerous requirement. Were the Government so minded, they might at some later time fine tune clause 68 to say that if the judicial commissioner found the situation slightly ambiguous, they could go to the journalist to seek clarification; if there were cases in which they were finding it difficult to make that judgment, they could seek further and better particulars. However, I think that Government amendment 51 is extremely helpful in addressing many of the concerns expressed about that important issue.
The Solicitor General
It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.
However, communications data are changing. The world in which the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.
Joanna Cherry
The Solicitor General will be aware of an exchange that I had earlier with the right hon. and learned Member for Beaconsfield (Mr Grieve) about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.
The Solicitor General
I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.
I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.
I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.
On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.
We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.
The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.
Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.
Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.
Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.
There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.
Stephen McPartland
I am grateful to the Solicitor General and to the Minister for Security for the time that they have given me over the past 12 months, to work with me on these amendments and in our negotiations. I am very happy to withdraw my new clause and not to press my other amendments, as they are probing amendments that were not intended to be pressed to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Clause 53
Power to grant authorisations
Amendment proposed: 320, page 42, leave out lines 14 and 15 and insert
“Subsection (2) applies if a designated senior officer of a relevant public authority considers—
(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.—(Gavin Newlands.)
See amendment 327.
Question put, That the amendment be made.
The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move, That the Bill be now read the Third time.
The first duty of Government is the protection of their citizens, and the first duty of Parliament is to hold the Government to account for the way they protect those citizens. This landmark Bill will ensure that our police and security and intelligence agencies have the powers they need to keep us safe in an uncertain world. It provides far greater transparency, overhauls safeguards and adds protections for privacy. It also introduces a new and world-leading oversight regime. It is a vital Bill—on that, we are agreed across the House.
It is only right to afford such an important Bill proper scrutiny. Three independent reviews informed the Bill’s drafting: the independent reviewer of terrorism legislation, David Anderson QC: an expert panel convened by the Royal United Services Institute; and the Intelligence and Security Committee of Parliament. It was then scrutinised by not one, but three parliamentary Committees. We have now had a further report from the Joint Committee on Human Rights, which said:
“We welcome the introduction of a Bill as representing a significant step forward in human rights terms towards the objective of providing a clear and transparent legal basis for…investigatory powers”.
The reports produced on the Bill, when piled up, reach nearly 1 foot high of paper. It has proceeded through the House of Commons on the normal timetable and with the usual forensic line-by-line scrutiny applied by the House. I thank the right hon. and hon. Members who sat on the Public Bill Committee; those who sat on the Joint Committee that gave the Bill pre-legislative scrutiny with Members from another place; the Joint Committee on Human Rights and the Science and Technology Committee for their reports; the right hon. and hon. Members of the Intelligence and Security Committee, who scrutinised the more sensitive aspects of the Bill; and all those right hon. and hon. Members who contributed on Report. The scrutiny that they have given the Bill may well be unprecedented.
I extend particular thanks to the Security Minister, the Solicitor General and the hon. and learned Member for Holborn and St Pancras (Keir Starmer) for the detailed way in which they have worked on the Bill. I also thank the hard-working team in the Home Office who have supported the Bill, and all those who supported the Committees.
It is because the Bill is so important that it has received unprecedented scrutiny. It provides a clear and comprehensible legal basis for the powers used by our law enforcement and intelligence agencies. It introduces the most fundamental reform in investigatory powers since the avowal of those agencies with the introduction of judicial authorisation of the most sensitive powers. It puts the Wilson doctrine protections on to the statute book for the first time; creates one of the most senior and powerful judicial oversight posts in the country with the creation of the Investigatory Powers Commissioner; and brings the powers of our police and security and intelligence agencies up to date, making them fit for a digital age.
I have always said that I am willing to listen to constructive contributions from those on both sides of the House to get the Bill right, which is why the Government returned with amendments that I am grateful the House passed on Report. We have strengthened safeguards for journalists, for MPs and for the use of medical records, and added protections called for by communications service providers. Reflecting the cross-party support for the Bill, I am pleased that we have been able to agree the Opposition amendment to put beyond doubt the protections for trade union activity. We have welcomed amendments from the ISC to add clarity and strengthen safeguards.
Perhaps the most important change to the Bill is the new privacy clause, which places the protection of privacy at the heart of the Bill. The manuscript amendment that we tabled and passed yesterday will ensure not only that privacy is at the heart of the Bill, but that privacy must also be central to the decision to authorise the use of the most sensitive powers.
It is because we continue to listen that we have committed to make further changes when the Bill enters the Lords. Responding to another suggestion from the official Opposition, we will introduce a threshold for access to internet connection records, to put beyond doubt that those vital powers cannot be used to investigate minor crimes. We will introduce an amendment to respond to the Opposition proposal on the important appointment of the Investigatory Powers Commissioner. We have also committed to implement a number of further reforms proposed by the ISC.
I look forward to the continued careful scrutiny the Bill will receive in the other place, but the key message their lordships should take from the last two days of debate is that this House supports the Bill. We have before us a world-leading piece of legislation, which has been subject to unparalleled scrutiny, and which now, I hope, commands cross-party support. Being in government means taking the difficult decisions about the most fundamental questions that democratic societies face. It means striking the right balance between the need for privacy and the right to live in safety and security.
Being a responsible Opposition means scrutinising those decisions thoroughly, but fairly. I commend the Opposition for the constructive approach they have taken to these most important issues. I commend all those who have contributed to the scrutiny that we have seen today and throughout the passage of the Bill. I commend this vital Bill to the House.
Andy Burnham
I was first elected to the House 15 years ago to this very day. In that time, debates on security and privacy have produced some of the most fractious exchanges I have seen. It is treacherous territory littered with past failure. Too often, such debates are pitched as a clash between two absolutes of privacy and security, where there can be no compromise and only one winner—witness the Apple versus FBI debate in the US.
I have always started from the point that people should not be forced to choose between the two. We all have an interest in maximising both our personal privacy and our collective security. We have to work to find the best point of balance between the two. Over the past three months, this House has got closer to finding that balance than ever before. We have elevated the debate above simplistic loyalties to the security or privacy lobbies. As a result, we are now significantly closer to developing the balanced, modern, world-leading framework, which the Home Secretary spoke about, for the use of investigatory powers that this country needs in the digital age.
I echo the thanks the Home Secretary gave to right hon. and hon. Members of this House and its various Committees: all Members who have contributed in the past two days; the members of the Public Bill Committee; the Chairs of that Committee, the hon. Member for Mid Bedfordshire (Nadine Dorries) and my hon. Friend the Member for Ynys Môn (Albert Owen); and the Clerks and the Public Bill Office for overseeing such a high quality process.
The Bill leaves this House in a much better state than we found it. That is due in no small part to the forensic mind and engaging approach of my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer). By setting out clearly after Second Reading our seven substantial concerns, we have been able to bring a focus to this debate that I think has been to the benefit of this House. I am pleased to say that we have secured major commitments on all seven concerns, in particular on bulk powers, the independent review, the privacy clause, judicial oversight and the double lock, and trade unions. Thanks to the constructive work of Labour, there are stronger safeguards in the Bill that protect people’s privacy and their human rights. I say this to those who might be planning to vote against the Bill tonight: a vote against it is to deny people those safeguards and to leave on the statute book a much weaker piece of legislation that does not afford those protections.
Our consideration has also been helped by the way in which we, as a country, continue to shine a light on some of the darkest chapters in our past. We continue to learn of instances where the power of the state has been unfairly used against ordinary people. By being prepared to open up about that and be honest about how we were governed and policed in the past, I believe we are now beginning to make better legislation in the present. I pay tribute to the Home Secretary for the courage she has shown in being prepared to do that, but I say again that she should be prepared to carry on going wherever that evidence takes us. Following the Hillsborough verdict, I believe that that trail now leads very firmly to Orgreave, and, following the court settlement last month, to blacklisting.
I will continue to press the Home Secretary on those matters, but I congratulate her on how she and her Ministers have handled discussions on the Bill. The Security Minister, or Brother Hayes as we might now call him after his starring role in today’s papers, has brought all his considerable experience and personality to bear in moving the Bill forward. It is all the better for it. Although he probably does not want me to mention him, I feel the need to mention the hon. Member for Brighton, Kemptown (Simon Kirby), who has been the most helpful Government Whip I have ever come across.
Let me be clear: the Bill is not there yet. We need further changes on internet connection records—the Home Secretary alluded to that—and on the protection of journalists and their sources, and on legal privilege. However, if the Government continue with the same approach as the one they have adopted in recent weeks, I have every confidence that we will get there. We must do that for those who depend on the Bill we are debating. The police and security services do incredibly difficult work on our behalf and we thank them for it. Their job has got harder as both the level of the threat has risen and the nature of communication has changed in the modern world. To fail to respond to that would be a dereliction of our duties to them; it would also fail our constituents. The Bill is ultimately about their safety, the safety of their families and their privacy. I think we can look ourselves in the mirror tomorrow and say we have done our level best to maximise both.
Joanna Cherry
I start by placing on record my thanks to all the organisations that have supported and advised the Scottish National party during the passage of the Bill. I said at the outset of the debate yesterday that I made no apology for tabling so many amendments and I stick by that. This is one of the most lengthy and complex Bills that the House has debated for many years. The powers it seeks to give to the state are immense and far-reaching. The Bill is of huge constitutional significance, yet we have had fewer than two full working days to debate it on Report. Accordingly, the number of amendments that could be put to a vote was just a very small proportion of the number tabled.
The SNP wants to give the security services necessary and proportionate powers to fight terrorism; we wanted to support those parts of the Bill that maintained and codified law enforcement’s existing powers; and we would have been happy to support an enhanced oversight regime. However, so long as the Bill allows such significantly unfettered collection of, and access to, communications data, including internet connection records, we cannot give it our support. Neither can we support a Bill that sets out such far-reaching powers to acquire the personal and private data of our constituents, while a proper case for the necessity of those powers has yet to be made out.
We have been happy to support some Government amendments, including new clause 5, which appears to recognise the importance of taking into account the right to privacy and other human rights, but such concessions as the Government have made have been vastly exaggerated by both the Government and, I am sorry to say, the main Opposition party. There has been a great deal too much mutual congratulation. Only the SNP and the Liberal Democrats have been concerned enough to put opposition amendments to votes. Were there really no issues that the Labour party considered worth putting to a vote?
We were pleased to offer our support to the Labour party on its amendment protecting trade unionists going about their lawful activities, but what about other activists and campaigners? What about non-governmental organisations and whistleblowers? The SNP’s amendments were also designed to protect them. Why were they not supported? The main Opposition party seems content to take Government assurances at face value and to leave matters to the Lords. The SNP believes that these issues should be debated in full and resolved on the Floor of this Chamber, which is democratically elected and accountable to the public, not in the unelected, unaccountable Lords. [Interruption.] I would appreciate it if those who have been absent for most of the debate would stop chuntering from the Front Bench. I am angry with people who treat these matters so lightly.
I want to take bulk powers as an example. All parties now accept that the case for bulk powers has not been made and that it needs an independent review. We sought to get the bulk powers taken out of the Bill until such time as a case had been made. It is possible that a case for the necessity of bulk powers will not be made. As we have heard in detail, America has recently retreated from the necessity to use bulk powers. What happens if the case for bulk powers is not made? Neither the Minister nor the official Opposition would answer that question. Because the SNP amendment to take bulk powers out of the Bill until such time as a case has been made was defeated, those powers are still in the Bill. When the independent operational case is published, it will be the House of Lords, not the Commons, that will scrutinise and debate it. I am proud to say I consider that a travesty of democracy.
There is huge public concern about the implications of the Bill. The public—our constituents—are concerned about their privacy and right to data security. It is disappointing, therefore, that the House has in effect abdicated its responsibility properly to scrutinise the Bill to an unelected Chamber. The interests of our constituents have not been well served by the system, and it simply reinforces me in my view that the interests of my constituents, the people of Scotland and the people of these islands are not always best served by the way we do things in this House.
For all those reasons, the SNP will take a principled stand and vote—[Interruption.] I know it is hard for Government Members to recognise the notion of a principled stand, but they will see one in action in about 10 minutes. For all the reasons I have outlined, the SNP will take a principled stand, reflecting the views of many people across these islands and their concerns about the Bill, and vote against it tonight.
Matt Warman
It has been my privilege to serve on not one, not two, but three Committees examining this Bill. Whether it is the Joint Committee, the Bill Committee or the Select Committee on Science and Technology, they were just three examples from a huge number and an unprecedented level of scrutiny that this hugely important Bill has received.
In the Bill Committee, on which I served with the hon. and learned Member for Edinburgh South West (Joanna Cherry), we saw a remarkably conciliatory approach from those on the Front Bench. I also thought it was a genuine privilege to be in the same room as an Opposition who took a view that went so far above party politics, because this is a Bill that is above party politics. That is because what our constituents worry about, even more than the vital privacy concerns that the SNP has persistently raised, is the threat that we face in a global and unstable world. The threats that we have seen on the Committees examining this Bill are greater than they have ever been before and they need to be tackled in a fundamentally different way from that provided for in the broken legislation that is currently in force.
I would therefore argue, and I hope the whole House would agree, that this is legislation that transcends party politics and goes beyond what we have seen from the legislation that exists today. What is demanded from us in this House is legislation that understands and is adaptable to technology that is unlike that in the world that the previous legislation was built to combat. I believe sincerely—from a principled position, I could even say—that, whether on ICRs, protection for journalists, bulk powers or bulk datasets, this Bill struggles and finds the balance that we all need to keep our constituents safe. That is why I will be voting for it this evening.
Mr Winnick
I accept, of course, the changes that those on the Labour Front Bench have got from the Government—it would be churlish of me not to say so—and although I voted in all the Divisions with her, I dissociate myself from some of the remarks made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), representing the Scottish National party. I am sure that those on my Front Bench work on the basis of trying to get the best possible arrangements for this measure, and I accept that.
Unfortunately, I do not accept that this Bill is necessary. It would have been even worse if the measures I have mentioned had not been included, although I suspect that the original Bill that came to us on Second Reading would still have been supported by virtually every Conservative Member. As far as I am concerned, the Bill is unacceptable. Despite the changes, it remains the position that internet service providers and others will be compelled in certain circumstances to retain every person’s communication data, texts, emails and, indeed, browsing history. I find that far too intrusive and indiscriminate. It should not be part of such legislation.
It is the first time this has happened. I find it unfortunate that such a measure can be put before the House of Commons, even more so when I take into consideration what happened when the Labour Government were in office and the manner in which the Tory Opposition at every opportunity said that they had such a deep concern for civil liberties. This Bill is hardly an example of such concern.
We are told that the review of such bulk powers—which, as I have said, are totally unacceptable—is to be done by the independent reviewer of terrorism legislation. That is fine, but should it not have been done before the measure came before the House of Commons? Why should it have to wait until the Bill goes to the unelected House of Lords? Why should we not have the conclusions of any such review?
Let me say that literally no one in this House has a monopoly when it comes to wanting to prevent terrorism. All of us deplore the slaughter of innocent people—the manner in which, for example, 7/7 occurred, in which 52 people were slaughtered and so many were injured, and of course the terrorism that goes on abroad. All of us want not just to condemn such terrorism, but to take effective measures to stop it happening in Britain and elsewhere. However, I do not believe that this is the way to achieve that. If I did, I would support the Bill with no hesitation whatsoever, whether I was in the majority or the minority: that would not concern me in the least.
It is interesting to note that, as I pointed out on Second Reading, a former technical director of the United States National Security Agency—who presumably had a fair amount of knowledge of such matters—argued, in an article in The Times, that bulk collection simply did not work. It did not work, Bill Binney said, because dealing with such vast amounts of details defeated the purpose. He made the good and valid point that what was required was the targeting of suspects and their social network—the targeting of those who, in the eyes of the security authorities and the police, were likely to cause damage and murder in our country.
I greatly regret that I cannot support the Bill, and believe that it should be defeated. I do not know what the House of Lords will do, but if the Bill is passed there, I hope that it will incorporate amendments that will make it somewhat more acceptable. However, one thing is certain: when I look back on my many years in the House of Commons, if I live long enough to reflect on votes in which I have participated, I shall be pleased that I voted against this Bill. It will give me some satisfaction that I voted against a measure that intrudes on civil liberties on such an extensive scale.
Several hon. Members rose—
Madam Deputy Speaker (Natascha Engel)
Order. We have 14 minutes, and about six Members wish to speak. I hope that that will be borne in mind.
Mr Grieve
It is always a pleasure to follow the hon. Member for Walsall North (Mr Winnick). We have co-operated on civil liberties matters in the past, and the hon. Gentleman has shown great courage in many of the approaches that he has taken, including those to legislation when his own party was in government. I hope he will accept, however—just as I accept the principles that underpin his opposition and, indeed, that of the hon. and learned Member for Edinburgh South West (Joanna Cherry)—that those of us who will support the Bill on Third Reading are not acting in an unprincipled fashion.
As was pointed out by the right hon. Member for Leigh (Andy Burnham), the simple fact is that this is not just some opportunistic gimmick employed by the Government in an attempt to acquire more power. The existing legislation was doing positive harm; indeed, allowing it to remain would have been far more likely to undermine civil liberties than ensuring that it was properly replaced. It seems to me that, during its passage in the House of Commons, the Bill has been immeasurably improved. I am grateful to my right hon. Friend the Home Secretary for listening and responding to the concerns expressed by the Intelligence and Security Committee and for accepting virtually all our amendments, although I recognise that we shall need to negotiate on some areas of detail.
The ISC has always taken the collective view that this legislation is necessary, and that that necessity applies to bulk powers of collection. We look forward to and will accept David Anderson’s report, and will consider whether there are indeed any alternatives that might be advanced, but I have to say that, on the basis of everything that we have seen up to now, we believe that bulk powers are needed, although sensible and proper safeguards are required to ensure that they cannot be abused. The Bill contains such safeguards, and I believe that when it comes back from the other place, it will be in an even better condition. Parliament, it seems to me, has been doing its job rather well.
If I have any complaint to make about the Bill’s passage, it is this: the quantity of amendments tabled on Report has rendered the Order Paper entirely inadequate. Until we have an Order Paper that marries the amendment numbers to page numbers—which is vitally needed—we shall be wasting a great deal of our time in the Chamber faffing around when we might have been doing other things. I hope that that complaint is passed on. I might even suggest that someone should consult GCHQ if there is a difficulty in finding the necessary formula on a computer to do the page numbering and the amendment numbering at the same time.
With that thought, I just want to say that it has been a privilege to participate in the passage of this Bill, and I hope that when it comes back to this House we will be able to reassure the hon. Member for Walsall North and the hon. and learned Member for Edinburgh South West that they have a piece of legislation that will actually stand the test of time and be a credit to this House.
Mr Alistair Carmichael
I recall that the first Public Bill Committee on which I served was on the Proceeds of Crime Act 2002, when the right hon. and learned Member for Beaconsfield (Mr Grieve) led for the Conservatives. I seem to recall that he made the same point about the Order Paper in 2001. Despite the modernisation that we have seen over the past 15 years, it remains a piece of work that is outstanding.
My party voted against this Bill on Second Reading, and it is a matter of profound regret that I will be doing the same again tonight on Third Reading. Notwithstanding the progress that has been made, the Bill is still not yet fit for sending to the other place.
The right hon. Member for Leigh (Andy Burnham) reminded us that it was 15 years ago today that he and I were elected to this House. I have seen a lot happen in that time, and I like to think that I have learned a thing or two, one of which is that when Government Ministers and Government Back Benchers shower the Opposition Front Bench with praise, it is time to head for the hills because we are going to do something that is seriously bad and dangerous.
The first time that the right hon. Gentleman and I saw that in this House was in the run-up to the Iraq war in 2003 when the Conservatives, then in opposition, said that they would take the Government position on trust. Later on, they said, “Of course, if we had known what we know now, we would not have supported them at the time.” They could not have known then what they knew later, because they never asked the questions. It is not the job of the Opposition to take the Government’s views on trust, but that is what they are doing. I do not question their principle, but I am afraid I cannot share their judgment.
Andy Burnham
The right hon. Gentleman seems to be advocating an argument that we can only achieve progress by being oppositional or party political. Surely there are occasions when we can do more by working across the House. We have shown that on this issue and on others, such as Hillsborough and other past injustices.
Mr Carmichael
I do not need to take any lessons about working with other parties from the right hon. Gentleman. I did that for five years in a coalition Government when the Labour Front Bench could do nothing but tribally oppose.
Mr Carmichael
No, I am sorry. We have a shortage of time, so I am not taking any more interventions—[Interruption.] It will not be worth listening to; will the right hon. Gentleman just sit down, please?
We are told that a review is coming from David Anderson QC. We anticipate further amendments regarding the definition of internet connection records. We still await further detail on how the thorny issues of legal privilege and journalistic sources will be protected. That all adds up to a picture of massive doubt, and massive questions remain about the efficacy and necessity of the powers that the Government are bringing forward tonight. It would be an abdication of our responsibility as Opposition MPs to vote for it, and I will not be party to that abdication.
Victoria Atkins
It has been my privilege to serve on the Joint Committee on Human Rights and the Bill Committee. I want to challenge gently the tone adopted just then by the right hon. Member for Orkney and Shetland (Mr Carmichael), because I felt during the Joint Committee and in Committee that the people whom the Bill seeks to protect and those who sadly fell on 7/7 and in terrorist atrocities since were haunting me and many other members of those Committees.
Victoria Atkins
No, I am going to finish this point. What is more, I met the police officers and members of the security services who hold our safety in their hands, and they do that for reasons of good faith, not bad faith. I regret the tone that has been taken, but I am conscious of the time—
Victoria Atkins
I am not going to give way. The Joint Committee heard from 59 witnesses in 22 public panels. We received 148 written submissions, amounting to 1,500 pages of evidence. We visited the Metropolitan police and GCHQ, and we made 87 recommendations, more than two thirds of which have been accepted by the Home Office.
Victoria Atkins
No, thank you. The Bill Committee considered nearly 1,000 amendments, and in it the Government were led with style and eloquence by my right hon. Friend the Minister for Security and my hon. and learned Friend the Solicitor General. It was a pleasure to hear the forensic examination of the Bill by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and contributions from the hon. and learned Member for Edinburgh South West (Joanna Cherry). The scrutiny, care, considered argument and good will of those involved in the past seven months has improved this Bill. I have absolutely no doubt that it will help the security services, the police and other law enforcement agencies to protect us and to prosecute those who mean us harm. It is world-leading legislation and I commend it to the House.
Dr Murrison
I certainly rise to support this measure, which has improved enormously during its passage. I cannot think of a measure in my 15 years here that has been more thoroughly scrutinised than this one. Our constituents are going to be very pleased with what we have been doing over the past weeks and months. I have to say to the right hon. Member for Orkney and Shetland (Mr Carmichael), whom I respect very much, that one thing our constituents dislike most about this place is the perpetual protest in opposition, which we hear too often, particularly from his party. It does him no good. This Bill is—
Dr Murrison
Certainly not. This Bill has been characterised by consensus, and I have been heartened by the constructive attitude that the Labour Front Benchers have taken to this measure, moving from a position of abstention on Second Reading to one of support now. It does them a great deal of credit and has made this Bill very much better. The double lock was a turning point in this measure as far as I am concerned, but may I also say that the privacy clause, new clause 5, is essential for many of us? The Home Secretary pointed that out. We have not had an opportunity to debate it very much today, but new clause 14, on health matters, has also been particularly important for a number of us who had concerns.
Clause 222 has not been debated at great length, but again it is vital because it allows us in five years’ time to come back to this measure to see what more needs to be done and what might be removed. That is particularly relevant in the context of ICRs. We have heard that one outstanding issue relates to the definition and use of ICRs, and I know that the other place will debate that at some length. My right hon. Friend the Minister for Security has referred to it and he is right to do so. I firmly believe that we will want to come back to it in any event in five years’ time, as technology will have changed so much in that period.
In summary, I very much welcome this measure—it is absolutely right. I am convinced that that overwhelming majority of our constituents will be pleased with the assiduity we have applied to this measure and, in particular, with the consensual nature of our debate. It is a great measure. It will give our constituents the protection that they undoubtedly need, while safeguarding their historic liberties.
Madam Deputy Speaker (Natascha Engel)
For the remaining one and half minutes, I call Suella Fernandes.
Suella Fernandes
I will be short and to the point, Madam Deputy Speaker.
I rise to speak in support of this Bill, as it is a hard-won fight for all of us, and something of which this whole House can be proud. The nature and scale of the threat that we face today differs from the one that we faced even 12 months ago, as it is rapidly evolving and complex. I am proud to have contributed to this Bill as a member both of the Joint Committee and the Bill Committee. We made more than 100 recommendations, many of which have been adopted by the Government.
It is vital for our constituents that we pass this Bill today, and it will get my vote. I wish to put on record my thanks to the Front-Bench team, which was led by the Home Secretary and ably assisted by her turbo-charged team of the Solicitor General and the Minister for Security who brought style, eloquence, professionalism and panache, and to our Government Whip, my hon. Friend the Member for Brighton, Kemptown (Simon Kirby). I am proud to support this Bill, and it has my vote tonight.
Question put, That the Bill be now read the Third time.
Greg Mulholland (Leeds North West) (LD)
On a point of order, Madam Deputy Speaker. That was clearly an important vote, and one in which I wanted to take part. I turned up at St Stephen’s entrance only to be told that I was not allowed to go through to vote, with only a couple of minutes to go, because of filming in Westminster Hall. That is completely unacceptable when clearly the primary purpose of this place is to serve our democracy. Will you use your offices to look into the event and how this happened and ensure that never again will a Member of this House be turned away from an entrance and nearly prevented from voting?
Madam Deputy Speaker (Natascha Engel)
I thank the hon. Gentleman for giving advance notice of his point of order during the Division. I think that everybody shares his feeling that under no circumstances should that ever happen. I am delighted that he did make it to the Division, and that there are no further Divisions this evening in which Members could be prevented from voting. We will certainly ask the Serjeant at Arms to investigate and get back to us in order to make sure that that never happens again. I thank the hon. Gentleman for his point of order.
Investigatory Powers Bill
Tuesday 11th October 2016
(8 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 51KB) - (11 Oct 2016)
16:46 - Division on Amendment 15 - Ayes: 282 / Noes: 180 - Amendment 15 agreed.
Lord Janvrin
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.”
Lord Janvrin (CB)
My Lords, I rise briefly to speak to Amendment 1, tabled in my name. I declare an interest as a member of the Intelligence and Security Committee. When the ISC reported on the draft Bill, we recommended that privacy protection should form the backbone of the legislation, around which the exceptional, intrusive powers would then be built. This recommendation was to underline at the very outset of the Bill that a delicate balance must be struck between an individual’s right to privacy and the exceptional powers needed by the intelligence agencies to ensure our safety and security.
The Bill has seen substantial changes in the other place and at earlier stages in this House, and those changes have introduced significant improvements in the protection afforded to privacy. Very important in this process was the introduction by the Government at the overview of the Bill of the clause on general duties in relation to privacy. This amendment seeks simply to reinforce the Government’s approach. The Intelligence and Security Committee still feels that there is merit in placing a simple statement right at the forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority. I hope that, on this occasion, the Minister may feel able to support this very brief amendment, and I look forward to hearing his response. I beg to move.
Baroness Hamwee (LD)
My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name.
We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the “rubbery” quality of the term “have regard to”. This amendment would make the obligation an absolute one—but not an unreasonable one, because the term “reasonably”, as in,
“could reasonably be achieved by other less intrusive means”,
is included. My noble friend Lord Lester referred to this as,
“classic principle of proportionality language”.—[Official Report, 11/7/16; col. 53.]
I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording,
“would be more useful and more certain”,
than that with which he was comparing it, and that, above all, it would,
“avoid unnecessary disputes about the meaning of and compliance with Article 8”—
that is, Article 8 of the convention—
“in the courts”.—[Official Report, 11/7/16; col. 54.]
My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear.
The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill,
“rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty”.—[Official Report, 11/7/16; col. 56.]
Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told.
Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the “particular sensitivity” of information. Amendment 11 gives examples of “sensitive” information. Are there, therefore, two hurdles to be crossed: “sensitive” and “particular sensitivity”? Amendment 12 seeks to understand how the two amendments relate to one another.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the noble Lord, Lord Janvrin, has again spoken persuasively on the importance of making clear that privacy is at the heart of the Bill. The amendment tabled in his name, on behalf of the Intelligence and Security Committee of Parliament, serves to reinforce that point and provide greater clarity. He will be pleased to know that, on that basis, I am happy to support it.
Included in this group are a number of government amendments. Clause 2 brings together in one place at the front of the Bill the considerations a public authority must have regard to, and the duties that apply, when exercising a power provided by this Bill.
Amendments 2 through to 7 are technical amendments to ensure that the obligations under Clause 2 continue to “bite” in relation to the roles of judicial commissioners under the Bill as amended in this House. Some of these could be seen as consequential to amendments that we shall discuss in the coming days. If the House will allow, I do not believe that it would be helpful to expand on them here, save to say that the Government propose to introduce greater protections in respect of the retention of communications data and the treatment of sensitive professions under the Bill. Where those protections create a role for judicial commissioners, the amendments will again ensure that the duties imposed by Clause 2 continue to apply in respect of the commissioners’ expanded remit.
“(ga) to approve the use of criteria under section 144, 180 or (Additional safeguards for items subject to legal privilege: examination),”
“(gb) to give an authorisation under section 200(3)(b),(gc) to approve a decision to give such an authorisation,”
“(aa) whether the level of protection to be applied in relation to any obtaining of information by virtue of the warrant, authorisation or notice is higher because of the particular sensitivity of that information,”
“( ) For the purposes of subsection (2)(aa), examples of sensitive information include—(a) items subject to legal privilege,(b) any information identifying or confirming a source of journalistic information, and(c) relevant confidential information within the meaning given by paragraph 2(2) of Schedule 7 (certain information held in confidence and consisting of personal records, journalistic material or communications between Members of Parliament and their constituents).”
Lord Paddick
“Investigatory powers: civil liberties board
(1) An independent body, to be known as the investigatory powers: civil liberties board (referred to in this section as “the Board”), shall be established.(2) The Board’s primary purpose shall be to—(a) ensure that civil liberties are considered in the development and implementation of policy, legislation and executive action related to investigatory powers, and(b) analyse and review actions taken or proposed to be taken by the Government which relate to the use of investigatory powers, having regard to the need for such actions to be balanced with the need to protect privacy and civil liberties and the duties set out in section 2.(3) The Board shall be composed of a full-time chairman and four additional members who shall be appointed by the Secretary of State in consultation with the Investigatory Powers Commissioner and Independent Reviewer of Terrorism Legislation.(4) Members of the Board shall be selected on the basis of professional qualifications, achievements, public stature, expertise in civil liberties and privacy, and relevant experience, and without regard to political affiliation, and in no event shall more than three members of the Board be members of the same political party.(5) The Board—(a) shall have access to all relevant material (including classified information) held by any government department or agency;(b) may interview and take statements from personnel of any department and agency related to their functions;(c) may request information or assistance from any Government department or agency.(6) The Secretary of State may by regulations made by statutory instrument make provision for—(a) the payment of expenses and allowances to members;(b) the circumstances in which a person ceases to be a member;(c) the appointment of staff, their terms and conditions of employment and their pensions, allowances or gratuities.(7) The Board shall report to Parliament at least once annually on—(a) its activities and any recommendations; and(b) any other matters it considers appropriate.”
Lord Paddick (LD)
My Lords, Amendment 13 is also in the name of my noble friend Lord Strasburger. In Committee, we moved an amendment that would have triggered implementation of the Privacy and Civil Liberties Board that the Liberal Democrats in the coalition Government insisted was part of the package of measures included in the Counter-Terrorism and Security Act 2015. We withdrew that amendment but the Government have failed to give us any hope that it will be accepted. At this stage we are introducing a new amendment to establish an alternative Privacy and Civil Liberties Board based more closely on the well-regarded American model.
In the United States the Privacy and Civil Liberties Oversight Board is an independent, bipartisan agency within the executive branch. It comprises four part-time members and a full-time chairman, and the board is vested with two fundamental authorities: first, to review and analyse actions the executive branch takes to protect the nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and secondly, to ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations and policies related to efforts to protect the nation against terrorism. We want a similar body in the UK, and we are not the only ones who do. The Prime Minister, when Home Secretary, committed the Government to,
“ensure we have more transparency from Government”,
which we are doing through this Bill. She continued:
“We will also reduce the number of bodies that are able to have access to the communications data”,
which, again, we are doing through this Bill, and,
“establish a privacy and civil liberties board based on the US model”.—[Official Report, Commons, 10/07/14; col. 472.]
It is only the latter commitment that this Government have failed to fulfil and which this amendment seeks to address. Noble Lords will see that the wording of the amendment seeks to reflect as accurately as possible the American model, which is widely seen as a world-class example of its kind.
Lord Harris of Haringey (Lab)
Is the noble Lord therefore saying that the American approach to this matter is totally protective of civil liberties?
Lord Paddick
My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.
Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:
“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.
I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—
Lord Carlile of Berriew (LD)
My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?
Lord Paddick
My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.
Baroness Buscombe (Con)
I am grateful to the noble Lord for giving way. I do not understand this amendment. Can he explain the point of having this board when we will already have the commissioner?
Lord Paddick
My Lords, at the moment we have an Independent Reviewer of Terrorism Legislation, whose job it is to look at the operation of the current legislation, as far as I understand it. This is a wider panel, whose emphasis is on looking at the civil liberties and privacy aspects. There is a subtle difference in where the independent reviewer and the panel are coming from, providing a better balance between the arguments put forward by the security agencies and an advocate for those who argue to protect civil liberties and privacy.
Lord Brown of Eaton-under-Heywood (CB)
Will the civil liberties to which this proposed board is to have regard and consider include—as one would hope—the civil liberties of those who are at risk if there is a terrorist outrage, or will it look at only one side of the civil liberties picture?
Lord Paddick
I am grateful to the noble and learned Lord for that intervention. Of course they must look at civil liberties in the round when addressing this issue.
Baroness Manningham-Buller (CB)
I just wonder whether the noble Lord has considered the possibility that the security and intelligence agencies may also have an interest in civil liberties. It is not one side against the other. In deciding what you go for, that is a key part of the provision.
Lord Paddick
I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.
I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.
Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.
Lord Carlile of Berriew
My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.
Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.
I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.
The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,
“all relevant material (including classified information) held by any government department or agency”.
Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,
“personnel of any department and agency”.
That is a provision completely unparalleled in our history.
Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.
Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.
Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.
This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.
Lord Rooker (Lab)
My Lords, all I can say in response so far is thank heavens we do not have the coalition Government in power. I support entirely what we have just heard from the noble Lord, the former Independent Reviewer of Terrorism Legislation.
I will choose my words carefully. One of the things that is worth thinking about with legislation like this is that we have the Government today, but we are legislating; we are Parliament. How would the Opposition use this? When I look at my friends in opposition, frankly, I will support the Government to vote this down. I am not prepared to abstain on such a barmy and dangerous amendment, as the noble Lord just said.
I will not go through the amendment. In fact, the noble Lord who moved it did not go through it. He did not explain what it meant by “professional qualifications, achievements” and “public stature” for the appointments. It is preposterous and a nosy parker’s charter into investigatory powers because it does not talk about looking at things; it demands access to all material from an agency and requests information from any agency or government department. There is nothing about the staff of the body. Forget the fact it is envisaged that three out of five members of the board will be of the same political party—it is envisaged to be party political—there is nothing about the security aspects of the staff, let alone the vetting of the people.
It is not, as the amendment says, just about civil liberties. It is in many ways trying to second-guess the powers of the commissioners. It is trying to second-guess the Joint Committee on Human Rights and the parliamentary security committee. We should have nothing to do with it. I hope the noble Lord will think twice if he is thinking about calling a Division on this. They will be laughed out of court.
Lord West of Spithead (Lab)
My Lords, I fully support what the noble Lords, Lord Carlile and Lord Rooker, have said. The amendment would create a security nightmare and be a recipe for obfuscation, muddle and confusion. Indeed, it is a dangerous proposal and I am amazed that it has been put forward. If the House divided, I would vote against it. Accepting it would be a grave error, and I am surprised and shocked to see such an amendment.
Baroness Buscombe
My Lords, I wonder whether I might be helpful to the noble Lord, Lord Paddick, in his quest in some way to emulate the American model. I was recently at a conference in Vienna as a member of the Joint Committee on the National Security Strategy, where we discussed the issue of financing global terrorism. I had the pleasure of meeting two distinguished members of the American civil liberties board. They spoke at great length; they were eloquent, distinguished and had great expertise. I asked them the question: do their Government have to listen to them? The answer was no—there was no point.
Lord Campbell of Pittenweem (LD)
My Lords, I, too, have the misfortune to disagree with my noble friend Lord Paddick, although perhaps in not quite such trenchant terms as my noble friend Lord Carlile. I want to make two points.
First, the original proposal, now contained in this amendment, was made against a wholly different framework and its necessity must be considered against the background of the statutory framework which the Bill now encompasses. On that basis, the fact that the proposal may have been considered previously—by the way, I am much more favourably disposed to the coalition Government than the noble Lord, Lord Rooker—is no argument for its inclusion in the Bill now.
My second point draws not least on my experience as a member of the Intelligence and Security Committee and is about the attitude of the security services. Subsection (2) of the proposed new clause simply rehearses existing law and adds nothing to the obligations already incumbent on the security services.
Lord Rosser (Lab)
As I understand the situation, the Independent Reviewer of Terrorism Legislation, David Anderson QC, was consulted by the Government on whether it would assist him in his role if he had the support of a privacy and civil liberties oversight board. The outcome was that the independent reviewer is now supported instead by the provision of specialist legal assistance, as David Anderson himself recommended in his 2014 annual report.
David Anderson announced the appointment of three specialist advisers, whom he had personally selected, earlier this year and to the best of my knowledge the independent reviewer has welcomed that approach. Given the measures in this Bill, including provision for the Investigatory Powers Commissioner and his or her role in protecting civil liberties, and the changes made as a result of recommendations of the different independent committees which looked at the Bill as originally worded—including a Joint Committee of both Houses—and the further changes and commitments made both during the Bill’s passage through the Commons, which led to us voting for it at Third Reading, and in this House, it is not clear what an additional board would positively contribute. We cannot support the amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, it may appear that there is little I can add, but I have my brief.
Considerable praise has been expressed throughout the passage of this Bill for the work of David Anderson QC, whose report, A Question of Trust, provides the backdrop to this legislation and whose subsequent review of the operational case for bulk powers has informed our scrutiny of Parts 6 and 7. There can be no doubt about the importance of Mr Anderson’s office, that of the Independent Reviewer of Terrorism Legislation.
Following the passage of the Counter-Terrorism and Security Act 2015, which has been alluded to, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he himself recommended—as noted by the noble Lord, Lord Rosser.
Lord Paddick
My Lords, I am very grateful to those who contributed to this debate. As far as my noble friend Lord Carlile of Berriew is concerned, I am not familiar with the Patriot Act but I know that the Privacy and Civil Liberties Oversight Board has made a significant difference in redressing the balance of some laws in the United States. Even though the noble Baroness, Lady Buscombe, spoke to members of that board and asked whether the Government must listen to it, the fact is that the Government in America did listen and acted on some of the board’s recommendations.
Clearly, these people would need to be security vetted. They will be appointed by the Secretary of State, who could impose whatever conditions she thought fit on those people.
On sloppy drafting, I am afraid it is that no more than three members of the board should be of the same political party rather than that three members should not be of any political party, which is what I think my noble friend suggested.
Lord Harris of Haringey
I am sorry to interrupt the noble Lord again, but could he clarify what that phrase is intended to mean? The way I, and I think my noble friend, read it is that, of a board of five, three can be of the same political party. Is the noble Lord saying that it is in the interests of civil liberties and all these other things to have a board of which three members are from the same political party—presumably the government party? Will that really then be an independent board?
Lord Paddick
The fact is that it is up to the Secretary of State to appoint those members to the board. One would hope that the Secretary of State would use the freedom provided by this amendment to ensure that the board is balanced. As with the noble and learned Lord, Lord Keen, I also have my brief. However, on this occasion it would be disrespectful to the House to press this amendment to a vote. Despite my brief, I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this will be, I hope, short and uncontentious. The amendment was suggested to us by the Law Society of Scotland. It seeks clarification and, of course, an amendment if one is required to achieve the point.
Clause 7 introduces Schedule 1 to the Bill and provides for “Monetary penalties for certain unlawful interceptions”. Under paragraph 4(4) of Schedule 1, a person who is the subject of a penalty notice may,
“request an oral hearing before the Commissioner in order to make representations”.
Our amendment would provide that such a person may have legal representation to assist with those representations.
The Law Society of Scotland says that,
“given the nature of the Bill and from an equality of arms perspective, legal representation should be available as a right”.
I would say that legal representation should generally be available, whatever the Bill, whether it is 10 pages or 250-plus pages and complicated. It is an important point to clarify. There is no provision which says there may not be legal representation, so it may be that this can be dealt with outside the Bill; certainly, there should be no block on it. I hope that the Minister will be sympathetic to the point. I beg to move.
Earl Howe
My Lords, I trust I can deal with this amendment with a degree of brevity equal to that employed by the noble Baroness. I reassure her that the amendment is not necessary. It is already the case that a person on whom a monetary penalty notice has been served who requests an oral hearing before the commissioner can be legally represented at the hearing. There is nothing in the Bill that would preclude such representation, and of course it will be up to the person on whom the notice is served to choose whether or not they wish to be so represented. Therefore, what is intended by the amendment is already provided for. Accordingly, I hope the noble Baroness will feel comfortable in withdrawing the amendment.
Baroness Hamwee
I am grateful for that assurance. The point is that it is not provided against, rather than that it is provided for. I dare say somebody will be writing rules about these hearings at some point, so I am glad to have that assurance on the record. I beg leave to withdraw the amendment.
Baroness Hollins
Baroness Hollins (CB)
My Lords, I will speak to all the amendments in my name in this group. The main one, Amendment 18, which inserts a new clause, is slightly revised from the version that was debated in Committee on 11 July. The feeling of the House then was that this should be brought back on Report and it was clear that I would seek to test the opinion of the House if there had been no progress by this stage. I am grateful to the Minister for meeting me and other noble Lords, including some of those engaged in 2013 with the Enterprise and Regulatory Reform Bill, the Defamation Bill and the Crime and Courts Bill, to discuss this matter,
The amendments have two functions. First, Amendments 15 to 17 amend the statutory tort in Clause 8 for interception of communications previously available under Section 1(3) of RIPA by making it applicable for use by victims of phone hacking or email hacking undertaken by third parties such as newspapers. The primary purpose of Amendment 18 is to provide costs protection in court cases for claimants as well as for Leveson-regulated news publishers with respect to these claims. The protection intended is equivalent to that which would exist for such claims had the Government commenced Section 40 of the Crime and Courts Act 2013. There has been no explanation to Parliament as to why the former Culture Secretary announced last October at a meeting of newspaper editors that he was not minded to commence Section 40. That represents a change of government policy, which both breaks the cross-party agreement and betrays promises made to both Houses and to press abuse victims.
As very brief background, I remind noble Lords that after the Leveson inquiry, to which my family and I gave evidence, Sir Brian Leveson recommended that any new regulator set up by the press should be accredited as independent and effective by an independent recognition panel, which would be wholly separate from Parliament and the industry. This panel was to be set up by royal charter rather than by statute, essentially as a concession to the press. His recommendations also dealt with how to provide incentives for newspapers to join an accredited self-regulator, since it was clear that press owners would not volunteer for effective and independent regulation, and how to provide access to the courts for press victims facing a deep-pocketed defendant. The Government accepted those recommendations but have failed to implement them.
Section 40 of the Crime and Courts Act would deliver those incentives and that access to justice. It should have been commenced before the exemplary damages sections, which were commenced automatically a year ago. The intention of the signatories to this amendment is to persuade the Government to commence Section 40 of the 2013 Act and to do so without delay. Naturally, if the Minister can reassure the House that Section 40 will be commenced before Third Reading, the amendment will not be pressed. I beg to move.
Baroness O'Neill of Bengarve (CB)
My Lords, earlier this afternoon in Amendment 10, the House accepted the principle of protection for journalistic sources. That seems very important, for reasons which I will not spell out but are well known. My noble friend’s amendments, in particular Amendment 18, propose a modest measure to balance Amendment 10 and I will try to explain why I think some balancing is necessary.
Noble Lords will note, as my noble friend has set out, that Parliament has already agreed a more extensive way of balancing this privilege for journalists with a comparable restriction. It was in Section 40 of the Crime and Courts Act 2013 but that section—we must remember that the principle has received cross-party support—has not been commenced. I do not comment on the reasons. The amendment cannot entirely remedy that oversight but it can go some way to balance the additional powers and protection given to journalistic activity, in the clause that we agreed earlier this afternoon, by limiting the costs against their misuse—by the media, that is, which refuse to be audited by an approved regulator.
The point is fundamentally simple: protecting journalistic sources is a profoundly important liberal purpose but the misuse of those sources, whether by invention, illegal interception of private communication or forms of blackmail and the like is not a good liberal cause. I believe that we need to balance this additional protection for journalistic sources with additional protection for those who are abused by journalists—or those posing as journalists—and then claim that the source was only invented or misrepresented, or that the information was obtained by criminal means. Those positions need to be not protected but audited. The new clause would achieve most of that purpose. It cannot achieve it all but, like my noble friend, I look forward very much to hearing what the Minister can tell us about progress on the possible implementation of Section 40 of the Crime and Courts Act, which would render this move redundant.
Lord Wallace of Tankerness (LD)
My Lords, I added my name to the amendment moved by the noble Baroness, Lady Hollins, and spoken to by the noble Baroness, Lady O’Neill of Bengarve, whose name is also on the amendment. While it is probably not an interest in terms of the register of interests, I declare an interest in that between December 2012 and March 2013 I spent copious hours, along with the noble and learned Lord, Lord Falconer of Thoroton, trying to put together the cross-party agreement in the immediate aftermath of the report from Sir Brian Leveson. It took a long, long time. Even beyond 18 March 2013 there was still more work to be done.
I was not present in the early hours of 18 March because of family engagements in Scotland, but I well recall coming back to Westminster during the course of that day and the efforts that were made to ensure that effect was given to the cross-party agreement. Some tweaking was required and agreements had to be made within the usual channels that certain amendments, such as the amendment in the name of the noble Lord, Lord Skidelsky, had to be withdrawn. Indeed, I think the record will show that this House delayed consideration of the Enterprise and Regulatory Reform Bill to allow the Prime Minister of the day to make a Statement in the House of Commons on the cross-party agreement. Indeed, at a later stage, the Defamation Bill had to be unamended in the House of Commons to take out an amendment in the names of the noble Lords, Lord Puttnam and Lord Fowler, the noble and learned Lord, Lord Mackay of Clashfern, and the noble Baroness, Lady Boothroyd, which this House had agreed to in response to the Leveson report. In the House of Commons, amendments were made and withdrawn and new government amendments were brought in to the Crime and Courts Bill to give effect to the cross-party agreement. One of the amendments which the Government brought in became Section 40 of the Crime and Courts Act 2013.
Those of us involved in this were never in any doubt that this was a package intended to be delivered in full, and not one from which a Government at a later date could pick and choose which bits to implement and which not. The commitment on commencement was done in the common way. It was for the Secretary of State to bring in the provision, but, again, it was never anticipated that a future Secretary of State would try not to bring into effect that particular provision. I was not present when the agreement was reached, but I am advised that there was a proposal from the Conservative Members in the cross-party talks for a version that would have expressly required that commencement of this costs provision should not take place until after recognition—but that was not agreed cross-party and the final cross-party agreement was that what became Section 40 should be commenced to provide a pre-existing incentive to join a recognition candidate regulator, not one that would bring jam tomorrow.
I hear that it has been suggested that the Government think that it is better to consult further before they commence Section 40 and that somehow or other Parliament has given the Government the discretion on whether to commence Section 40. All I can say is that those of us who were involved never anticipated that. Indeed, what was put to your Lordships’ House did not anticipate that happening. That is why I very much hope that, when he comes to reply, the Minister will indicate that the good will and spirit of that agreement and the undertakings that were made will be honoured. It would be far better for Section 40 to be commenced. This amendment does not go quite that far, but, if it is not commenced, we need to have some way of forcing the Government’s hand on this to ensure that what Parliament understood is given effect.
Lord Henley (Con)
I do not think that I was in my place for the bit of Committee when the precursor to this amendment was discussed. However, I sat on the pre-legislative scrutiny committee on the Bill under the able chairmanship of the noble Lord, Lord Murphy, so I have some status in this matter. I stress to noble Lords—as the noble Baroness, Lady O’Neill, and possibly the noble and learned Lord, Lord Wallace, said—that this should really be about what the Minister says when he comes to respond. I do not think that the amendment is appropriate for the Bill at this stage. This is something we want to hear from the Minister on; the amendment should not be pressed at this stage.
The Investigatory Powers Bill itself is crucial legislation to give the police and security services the powers that they need. Noble Lords on all sides of the House who have taken a very constructive approach to the issues in the Bill would find it unfortunate for Parliament to be distracted at this stage by an amendment that, I have to say, seems to be only barely related to the substance of the Bill before us—important though the amendment might be in its own right. I am sure the debate itself will send a clear message to the Government about the importance of this issue, which is why we want to hear from whoever of my noble friends is going to respond to this. But now is not the time for noble Lords to press this amendment on the Bill, because it is not relevant.
Lord Prescott (Lab)
My Lords, I intervene to support the amendment that has been moved by the noble Baroness, Lady Hollins, and supported by the noble and learned Lord, Lord Wallace. This is an issue of confidence in this place and in government. We are not seeking to change a Bill but to implement what the Government and all parties have agreed: that the Section 40 concept, which has just been discussed, should be included in this Bill. The Government have agreed the law but are not prepared to implement in statute this right to justice and financial support for people who have phone-hacking complaints against the press.
I declare an interest, as I did in relation to the Policing and Crime Bill, in that I am one of those who was hacked—46 times for my phone messages. However, the police and the Crown Prosecution Service denied it, and the Press Complaints Commission sided with the police and the prosecutor. In those circumstances, the only way I could seek any redress was to sue in the civil courts. I could not afford it, even though I have come here to the Lords—I still cannot afford it—but how else could I seek justice? We are talking about people who cannot afford to get justice in cases in which they have been offended against by phone hacking. As the noble and learned Lord, Lord Wallace, has pointed out, the Government and all parties agreed we should do this. We passed the legislation, but the Government have refused. I wait to hear what the Minister is going to say. I had hoped we were going to hear beforehand, when we met him yesterday, whether the Government’s position had changed and whether they intended to bring that element of justice into statute. I wait to hear what he has to say about that, but it is essential that we have it.
In these circumstances, doubts have constantly grown about the Government’s position. The last Secretary of State for Culture, Mr Whittingdale, actually went to a press dinner and cheered them all up by saying, “I am inclined not to do this”. Is that the Government’s position? We want to hear today whether it is still the same. We have a new Prime Minister, a new Secretary of State and a new Government—are they going to carry out what the previous Government promised in an all-party context? This debate is about the intention of the new Government. The Prime Minister said that she wanted to help weak and poorer people against the big rich ones, and by God, there is an example here. All these people who have told us time and again that they cannot afford an action are looking to us to make the adjustment and to implement the statute so that they can pursue cases.
My main concern is that we have no justice from the police or the prosecutor. They work together. I cannot call it a conspiracy, but they happened to agree that there was no evidence. But as the courts pointed out, when I took the case to them on human rights grounds, I was right: they did have the evidence, but together they conspired to not look at it or to ignore it. That is not acceptable. If that was past history, I could perhaps think that we had at least learned the lessons. But we have not. We are still not implementing this essential part, which would provide money to allow people to secure justice in our court system. If it was only that, okay, but have we not noticed the Times even this week? The press are completely ignoring most of the actual requirements under the editors’ code.
I raised the editors’ code in a previous debate. I thought I would go to the Press Complaints Commission; rather foolishly, I hoped to get some sort of judgment from among the press at least, but I could not get it. After that debate, I got letters from the Associated Press and the judge in charge of the inquiry saying my complaint, that most inquiries dealing with press complaints are dominated by the press, was wrong. However, I have checked it all out. The emphasis in the criteria is different depending on whether journalists are employed by papers and magazines or are working in TV or other areas, where suddenly the balance changes. That was my complaint. I will deal with the industry—I have been invited by the judge to come and talk to him, so I look forward to a cup of tea with him to see what he has to say—but as to whether or not these bodies are independent, including the new body, IPSO, we have to make a judgment. That came out of Leveson.
My main complaint is that part two of Leveson was meant to look at the relationship between the press and the police. There are still offences every day; today’s Daily Mail says:
“How top QC ‘buried evidence of Met bribes’”.
There are a number of such cases, such as Orgreave or the football scandal at Sheffield. There has been co-operation for a long time between the press and the police. What worries me most is another story that appeared in the Telegraph—these are not my favourite papers, as your Lordships have probably guessed—about the new body that is coming in, which is covered partly by the Bill. It says that the investigatory powers that the police will now have will allow them to monitor every phone call and every text. All this information is now going to be brought in, and seven of our police forces have already invested the money to buy it. That means they are going to get even more information.
We are told that this is to deal with terrorists and criminals—I am not going to be against that; I think we all understand that—but I am talking about the victims of their actions. Why are they not considered to deserve some justice? They are the ones who really suffer, but they do not have the money or the power to intervene. Now there is going to be more information about them; I think an earlier debate mentioned credit card information of people in America. A massive amount of information is given to public institutions that we have to have trust in but I am afraid that, given their record at the moment, even since Leveson, I have no reason to believe that the co-operation between the police and the press has stopped. Mass information is going to make the situation even more difficult.
For God’s sake, can the Government tell us what they intend to do? If they are not going to do it, why do they not tell us? Then we would know where we stand. Let the victims know; they have been promised by Prime Minister after Prime Minister, “Don’t worry, we’re going to look after you”. All parties agreed to that and passed the legislation in the other Chamber, where we have done nothing since. It is in our hands to do something. When the Minister comes to reply, I hope he can say something more fruitful than, “We’re thinking about it”. It is three years since we passed the legislation, so thinking about it just means avoiding it. Let us have a statement from the Government for the victims, not for anyone else, acknowledging that they have a right to justice when the press have abused them, whether by phone hacking or otherwise.
The victims need money to go to court, make no mistake, particularly after the Government got rid of legal aid in most areas. They have no chance. Can we in this House think of the victims? I understand that we are extending powers to try to deal with criminals and terrorism; although I have worries about them, I am prepared to accept that. But who is thinking about the victims? That is our job. The Government should get on with the statute now, not just give us, “We’re thinking about it. We’re talking about it”. They should put it in language that the victims understand, as they are the ones who need to be considered here.
Lord Paddick
My Lords, I declare a couple of interests, particularly in the light of the comments from the noble Lord, Lord Prescott. The first is that I was a senior police officer at Scotland Yard during that time. I was also a party to the noble Lord’s suing of the Metropolitan Police for failing to inform us that we—myself included—were victims of phone hacking, in breach of our human rights and the responsibilities that the police had to protect those rights under the Human Rights Act. As with the noble Lord, the police initially denied that I had been a victim of phone hacking, but it subsequently transpired that I had. On that basis, I should limit my remarks, but I would say to noble Lords that I went with the Dowler family to visit the three leaders of the political parties—the two leaders who were in coalition at the time and the Labour leader. To hear the family’s story about how they were impacted by the press hacking into Milly Dowler’s voicemails was tragic.
The amendment does not weaken the Bill in terms of our nation’s fight against terrorism or trying to keep people safe. It does not directly affect the law enforcement or security services. In answer to the noble Lord, Lord Henley, if the amendment was not relevant to or within the scope of the Bill, the clerks would not have allowed it to be tabled. We on these Benches will support the amendment, should the noble Baroness, Lady Hollins, divide the House.
Lord Mackay of Clashfern (Con)
My Lords, it seems to me that the Government have a responsibility to implement the section in the Act that has been referred to. They have the power to commence that provision, and the reason for such delays is normally to make the necessary provision to enable it to be put into force. On this occasion, it looks as though there may be other reasons. I have to hope that those reasons do not include anything like succumbing to any particular influence that might be contrary to implementing what has been enacted—with the agreement, as the noble and learned Lord, Lord Wallace of Tankerness, pointed out from his personal experience, of all the political parties at the highest level at the time. I think it is the right thing to do for the Government to implement that provision. I am not at all sure that it is wise to enact some less effective provision in the hope that it will stir the Government up to enact the better one.
I sincerely hope that the new Secretary of State and the new Prime Minister will see the obligation that rests on them to carry out what had been undertaken by their predecessors. Indeed, the Prime Minister was a party to that agreement at the time as the Home Secretary of a Government who consented to the operation.
On the basis that the amendment is different from and less effective than the section in the enacted Bill, it is not particularly wise to put the amendment forward for enactment, but I hope that the new Secretary of State, having had a chance to consider the matter, and the Prime Minister, in her new role, will ensure that the agreement—so fully come to some years ago, after an amendment to another Bill had been passed in this House—will be honoured, and enact that moral obligation without further delay.
Lord Rosser
I will be brief, as the noble Baroness, Lady Hollins, and other noble Lords, including my noble friend Lord Prescott, have set out the case for and reasoning behind the wording of the amendment in very clear terms. Section 40 of the Crime and Courts Act 2013 was part of the cross-party agreement, which included the royal charter, which was signed by the then leaders of the Conservative, Labour and Liberal Democrat parties. As a result, amendments were withdrawn both in the Commons and in this House. Ministers subsequently continued to make explicit commitments in both Houses to bring in Section 40. They have, however, failed to honour that commitment, and have thus not implemented this part of the 2013 Act, in accordance with the wishes of both Houses and indeed, the previously declared intention of the Government. We will support the amendment if the noble Baroness, Lady Hollins, having heard the Government’s response, decides that she still needs to test the opinion of the House.
Earl Howe
My Lords, we discussed this issue in Committee when the noble Baroness tabled an amendment seeking to introduce a cause of action which would allow victims of unlawful interception to bring a civil claim. As she is aware, the Investigatory Powers Bill already contains a criminal offence where a person intercepts, without lawful authority, a communication in the course of its transmission via a public or private telecommunications system or a public postal system.
The cause of action, or tort, provided for in Clause 8, is intended to replicate the safeguard which existed in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that private telecommunications system. This was a necessary safeguard to protect individuals in very limited circumstances where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.
This provision was not intended to provide a route for anyone who believed their communications had been unlawfully intercepted to bring a civil case. As we have seen in recent times with the phone hacking cases brought by a number of individuals against media organisations, the appropriate civil routes of redress already exist, for example, for misuse of private information.
I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case. The Government, as has been said, have implemented the vast majority of Leveson’s recommendations for reforming press regulation. Importantly, they have set up and are funding the Press Recognition Panel, which is currently considering an application for recognition from the self-regulator IMPRESS.
The exemplary damages provisions have been commenced in line with the date set out in the 2013 Act. However, it is important to make clear to the House that no specific date was set for the commencement of the Section 40 costs provisions. Notwithstanding that, the Government continue to look at this issue closely. Indeed, to better understand the issue, my right honourable friend the Secretary of State for Culture, Media and Sport and the Minister for Digital and Culture met Hacked Off and victims of press abuse as their first priority. DCMS officials met Hacked Off at official level again only last week. So this is something that the Government are actively considering. I suggest to the House that it is not unreasonable for Ministers who are new in post to take time to understand the issues at play. The position is that, for the time being, Section 40 remains under consideration.
We should also bear in mind that no recognised regulator is yet in place, although I realise that that could change on 25 October when the Press Regulation Panel rule on IMPRESS’s application. Regardless of the panel’s decision, it is true to say that the press landscape has undergone a huge amount of change over the last four years and the Government need to be sensitive to that. A crucial part of Section 40, for example, is around ensuring both sides have access to low-cost arbitration as an alternative to expensive litigation. The arbitration scheme run by IMPRESS is relatively new, while IPSO is currently trialling an arbitration scheme to better understand how it could work effectively. Given the importance of arbitration to making Section 40 operate effectively, it would also be useful to see how both IMPRESS’s arbitration scheme and IPSO’s arbitration pilot work in practice.
I return to the specifics of the amendments which the noble Baroness has tabled.
Lord Prescott
When Secretary of State Whittingdale went to the editors’ conference and told them, “We are minded not to implement this”, was that government policy or his policy—and is the Minister’s policy any different?
Lord Rooker
That being said, can I follow up my noble friend’s question? The Minister listed groups that have asked the Government to implement Section 40. Is there an individual or group that has requested the new Government not to implement it?
Earl Howe
I am not aware of that, but I can seek advice and let the noble Lord know when I have received it.
I do not believe that the amendments that the noble Baroness has tabled will achieve the outcome that she seeks. This clause deals with the interception of private telecommunication systems, such as a company’s internal email or telephone system. That is not, I think, what the noble Baroness is driving at, so I do not believe the amendment would be capable of being used as she intends.
That reflects a broader point that these issues should not really be dealt with in this Bill. I am all too well aware that many people suffered terribly at the hands of unscrupulous members of the media, and I have a great deal of sympathy with the noble Baroness, whose family, I know, suffered unspeakable wrongdoing by people who called themselves journalists. While we all agree that the outcome of Leveson and the proper regulation of the media are clearly important matters, the powers for law enforcement and the security and intelligence agencies provided in this Bill are vitally important, too. It is not right to try to deal with serious but largely unrelated matters in a Bill of this vital national interest.
Lord Oates (LD)
Is the Minister aware that very few people in this House think that this is the ideal way in which to deal with the issue? They think that the ideal way in which to deal with it is to implement Section 40. Is he also aware that, when he says that the Government have implemented many of the aspects of Leveson, the implementation of Section 40 was regarded as absolutely critical to the system working? It was not put in the Bill at the Government’s discretion; it was put in and regarded at the time by all the party leaders, who gave solemn undertakings to the victims, as absolutely critical.
Earl Howe
I accept the point that the noble Lord made about the agreement made in 2013 on a cross-party basis. If the noble Baroness chooses to withdraw the amendment, the clear message given out by the debate will not be lost on my right honourable friend the Secretary of State as he considers these matters.
What we have here is an attempt to insert a clause into a Bill that just happens to be passing to force an issue that has no direct bearing on the Bill in question, and I question whether that is an appropriate thing to do. Mechanisms are provided for in both Houses of Parliament to debate subjects of particular interest to parliamentarians, and perhaps that would be a better route by which to raise these matters.
I hope that I can reassure the noble Baroness that the Government continue to look closely at the cost provisions in the Crime and Courts Act, and respectfully urge her to withdraw the amendment and allow the Government to consider the issue thoroughly.
Baroness Hollins
My Lords, I thank noble Lords for their support and understanding. I am, frankly, unconvinced by the Minister’s words. The Public Bill Office agreed the amendment as within the scope of the Bill. I am not just frustrated at the delay to commence Section 40; I am somewhat dismayed that Ministers are not yet up to speed on this issue. Perhaps I can help by briefly reviewing some of the past assurances and agreements.
Section 40 of the Crime and Courts Act was part of a package. This agreement was reached in March 2013, to avoid the Government being defeated in both Houses over delays in implementing the Leveson recommendations. We are being asked to consider a further delay. As the noble and learned Lord, Lord Wallace, reminded us, several other Bills were not then amended. I will not go through them again because I appreciate that time is short in this House. The amendment does nothing to weaken this Bill or affect security measures in any way. All the Government need to do is honour their commitment and commence Section 40. So many times over the past three years we have heard assurances that have come to nothing. It would be an injustice to victims if I passed up this chance to progress the intentions previously enshrined in the Crime and Courts Bill. Peers would not need to use this Bill to do the job if the Government had not used the device of non-commencement.
I assure noble Lords that I strongly support a free press, but freedom comes with responsibilities and claimants have rights, too. I would like to test the opinion of the House.
Baroness Hollins
Baroness Hollins
“Interception without lawful authority: award of costs
(1) This section applies where—(a) a claim is made under section 8 (civil liability for certain unlawful interceptions) against a person (“the defendant”),(b) the defendant was a relevant publisher at the material time, and(c) the claim is related to the publication of news-related material.(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.(4) This section is not to be read as limiting any power to make rules of court.(5) This section does not apply until such time as a body is first recognised as an approved regulator.(6) Subsections (2) and (3) shall apply to any claim issued after this section comes into force. (7) For the purposes of this section “approved regulator” shall have the same meaning as in section 42 of the Crime and Courts Act 2013, and “relevant publisher” shall have the same meaning as in section 41 of that Act.”
Baroness Hamwee
“General public reporting
(1) No offence shall be committed by a person who is subject to a warrant or notice under this Act disclosing by way of publication of a report—(a) the number of warrants received;(b) the number of accounts affected; and(c) the number of warrants complied with,during the period of 180 days prior to the date of the report.(2) Nothing in this section shall restrict the publication of information referred to in this section at a different time, or in a different form or manner agreed by the Secretary of State.”
Baroness Hamwee
My Lords, this might be a mouse after the last amendment but it is not unimportant. It is about transparency—and perhaps more than transparency. It is about positively putting information into the public domain and not simply providing information which can be looked through. It is, if you like, a companion to the very welcome privacy clauses in the Bill. It is intended to help the citizen understand what is going on and to enable operators to put into the public domain the warrants and so on with which they have to deal. It provides that they will not commit an offence by disclosing not details but the number of warrants, the number of accounts and the number of warrants complied with, going back only for a limited period of six months. The second limb of the amendment —that they can do more, or more can be done by whoever, if the Secretary of State agrees it—should go almost without saying.
I am told, and would welcome confirmation if the Minister can give it, that the Government are considering regulations to introduce a clear framework for transparency and that provisions such as this might fall within those. To that extent, my amendment is a probing amendment.
User transparency around engagement with law enforcement and government agencies is a key component of accountability to users. It is a prerequisite too, I would say, of redress. Given that the Government are committed to greater transparency than we have had hitherto through this Bill, and to this being a world-leading piece of legislation, I hope that they will be sympathetic to the provisions proposed. The amendment would permit providers to publish statistical data and would complement the Investigatory Powers Commissioner’s annual report, looking at the issues through a different lens and from another perspective. I beg to move.
Lord Keen of Elie
My Lords, it is the Government’s view that a new public reporting clause, as proposed by this amendment, is unnecessary. I will seek to explain why.
Clauses 55 and 125 already provide for the Secretary of State to make regulations that will permit operators to report information in relation to the number of interception and equipment interference warrants they have given effect to. Furthermore, the Government have proposed amendments to these clauses to give more flexibility to permit operators to publish greater statistical information about the warrants they have received. In response to a point made by the noble Baroness, Lady Hamwee, I can tell the House that it is the Government’s intention that the regulations will permit companies to publish details relating to the number of warrants they have given effect to and the number of customer accounts to which these warrants refer.
However, as was previously discussed in Committee, we need to be very careful about any exemptions to prohibitions on revealing sensitive information and the extent to which they might reveal the capabilities of the agencies. It is already the case that terrorists and criminals change their behaviour and the means they use to communicate to evade detection, and we must not give them further information that would help them to do so.
The Secretary of State must have the ability to protect the technical capabilities deployed by law enforcement and the security and intelligence agencies by setting out the way information relating to warrants may be reported—for example, the time period between being served with a warrant and publication of that information, or the bandings to be used for reporting on the numbers of warrants received. It is our view that the level of detail required is appropriate for such conditions to be provided for in regulations, not in the Bill.
The Government will of course continue to work closely with telecommunications operators on their transparency reporting. We have already discussed the proposed content of the draft regulations with them. Indeed, the government amendments to Clauses 55 and 125 reflect our efforts to address issues raised by operators in response to this consultation. Of course, also, the regulations issued under Clauses 55 and 125 will in due course be subject to parliamentary scrutiny.
It is therefore our view that the Bill and the Government amendments already provide for what these amendments seek, in in a way that allows companies to be transparent and the Government to protect sensitive capabilities. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I thank the noble and learned Lord for that response. What we are really being told is that the fleshing out of transparency provisions that I seek is in train. I of course understand points such as the need to consider exceptions.
I am prompted by this to mention a question that I should perhaps have asked the Government a little while ago, but I think all noble Lords will be interested. I am not expecting the noble and learned Lord to respond to this instantly, but we would all be interested to know the timetable for introducing regulations. We know there is a deadline of the end of this year because of DRIPA coming to the end of its natural life, but I assume the Bill cannot operate without a lot of secondary legislation. I wonder whether there could at some point be an indication of not only how the Government propose to deal with regulations but how the House, which is generally very supportive of the thrust of the legislation, despite one or two bits and pieces, can be helpful without losing its proper role of scrutinising regulations.
I should not perhaps take time on Report to be as pompous as that sounds. It is intended to be both an inquiry and an expression of concern about a matter that is for Parliament, not just the Government. Having said that, and welcoming the information about the work going on on this subject, I beg leave to withdraw the amendment.
“( ) A warrant may be considered necessary on the grounds falling within subsection (2)(b) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed and it is reasonably believed that the communications sought for interception will contain information relevant to the criminal investigation.”
Baroness Jones of Moulsecoomb (GP)
My Lords, I rise to speak to Amendments 20 and 67, because they are very closely linked. They both, in essence, would require a reasonable suspicion of a serious crime. They would need the authorities to demonstrate a reasonable suspicion of a serious crime, and a nexus between the communications sought and the crime suspected, for a targeted surveillance warrant to be authorised. I see absolutely no reason not to make this clear. I hope very much that Government see sense on this.
One of the biggest problems in every single power the Bill gives and sometimes creates is the lack of a reasonable suspicion—lack of a threshold that is absolutely clear for surveillance powers to be authorised for the purpose of preventing and detecting crime. Intrusive powers can be authorised to prevent and detect serious crime, but this general purpose is left wide open to broad interpretation and abuse without requiring the authorising authority to verify the existence of that reasonable suspicion of criminality. A requirement of reasonable suspicion, when the purpose of preventing and detecting serious crime is invoked, would protect people and prevent the abusive surveillance of law-abiding citizens that we have seen in the past, without unduly limiting legitimate use of surveillance powers.
Lord Paddick
My Lords, I have sympathy for the concerns held by the noble Baroness, Lady Jones, but bearing in mind the double lock that now applies in almost all warrant applications, which would not have applied when abuses of powers happened in the past, can the Minister reassure the House that the new provisions in the Bill for independent oversight of the granting of warrants may be sufficient to obviate the need for the amendments?
Lord Rosser
I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.
Lord Keen of Elie
My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.
The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.
The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.
Baroness Jones of Moulsecoomb
I thank the noble and learned Lord for his answer. I never tire of telling this House that I was targeted by the Met police, monitored by them and put on to a domestic extremist database with, I would argue, absolutely no cause. Noble Lords will forgive me if I do not quite believe that there are enough safeguards. Quite honestly, I wonder if in five or 10 years I will have the opportunity to come to Ministers and say, “I told you so”. However many safeguards are put in, without strengthening them and making them absolutely clear you leave the door open for abuse. We have seen it in the past. We know very well that part of this Bill’s meaning is to cover abuses of previous legislation. I am deeply unconfident about the safeguards proposed, as are other organisations outside the House. I beg leave to withdraw the amendment.
“and section 23(5) does not apply in relation to the refusal to approve the decision.”
Earl Howe
My Lords, I shall also speak to the other government amendments grouped here. These amendments relate to warrants: their scope, authorisation process and modification. I shall begin by discussing a number of amendments, many of which are minor and technical in nature.
Amendments 32 to 34 provide that a targeted interception warrant, targeted examination warrant or mutual assistance warrant authorising or requiring the interception or selection for examination of secondary data must specify the address, numbers, apparatus or other factors or combination of factors that are to be used for identifying the communications. This will bring the requirements for a warrant authorising the obtaining of secondary data into line with those warrants seeking to obtain communications. By “secondary data” I mean systems data attached to or logically associated with the communication that is capable of being separated from the remainder of the communication and which, if separated, would not reveal the meaning of the communication.
On Amendment 35, Clause 17 states that a warrant may relate to a person, organisation or set of premises, and Clause 29 goes on to set out requirements that must be met by warrants. Clause 29 already caters for the circumstances surrounding warrants intended for communications from or intended for any person, and for communications originating on or intended for transmission to any premises named or described in the warrant. This amendment makes a small change to include communications relating to an organisation within Clause 29.
Amendments 36, 261 and 272 are technical amendments that simply clarify that the communications described in a targeted interception warrant can include communications sent between anything owned, controlled or operated by the person or organisation specified in the warrant, including communications that are not sent by, or intended for, a person. This is nothing new and simply makes explicit the position in existing law. The amendments also clarify that any “premises” described in such a warrant include but are not limited to,
“land, movable structure, vehicle, vessel, aircraft or hovercraft”.
I thought it would assist the House if I gave an example of where such communications are crucial: gathering intelligence on the technical characteristics of military systems. This activity is vital to understanding, reducing and countering the threat to our interests around the world, including threats from foreign weapon systems in operational and strategic theatres, both directly through the understanding of the threat and through longer-term countermeasure development by the Ministry of Defence. It reduces the threat to our deployed and strategic forces—on the ground, at sea and in the air—and it is essential for keeping our Armed Forces safe, ensuring that they can operate effectively, and for providing options to protect our national interests.
As I speak, the RAF is deployed on counter-Daesh operations in the Middle East. Intelligence garnered from such signals or communications has played an important role in getting the RAF there and keeping it safe, in both the short and long term. The specifications that our aircraft and their on-board offensive and defensive systems have been built to were in large part shaped by the historic understanding of adversaries’ weapons capabilities. The long-term analysis of these data allows us to develop understanding of the way our adversaries operate, and assists in training and equipping our Armed Forces. It also informs deployment decisions, including risk assessment, force size and shape, and affordability. The way the world has changed over the past decade makes it more important than ever that we maintain this broad situational awareness so that, if our Armed Forces are required to provide support during a future global crisis, they are prepared and can be protected.
Given the global nature of these communications, the international nature of the arms trade and the inherent unpredictability of global instability, most warrants of this nature will relate to thematic subjects under Clause 17(2) such that relevant systems can be targeted wherever they are in the world. For example, if it is necessary to issue a warrant to obtain data emitted by military ships controlled by states posing a threat to the UK, the warrant must provide for data to be obtained from those ships irrespective of their location. However, as noble Lords will appreciate, the main purpose of this activity is to obtain information from and about systems, such as missile systems, ships, radar and aircraft. It is not about obtaining the private communications of individual people, whether in the UK or overseas. Nevertheless, the obtaining of the data and their subsequent handling, retention, use and destruction would always be subject to all the safeguards required by the Bill, as for any other targeted interception warrant. This includes the double lock of Secretary of State and judicial commissioner approval.
The activity that I have talked about here is crucial to our national security. It is activity that is already undertaken under existing law and it has always been the case that the Bill was intended to cater for it. These amendments simply make it absolutely clear that that is the case.
Amendment 39 is a minor amendment to correct the position whereby a competent authority outside the UK, such as a foreign law enforcement agency operating under a mutual assistance warrant, could make major or minor modifications to a warrant in an urgent case. It is not our intention that a competent authority outside the UK should be able to make major or minor modifications to an urgent mutual assistance warrant. Therefore, this amendment simply removes that ability for a competent authority outside the United Kingdom to make major or minor modifications to a mutual assistance warrant in an urgent case.
Similarly, Amendment 51 is a minor amendment which makes the definition of “interception subject” in Clause 38 simpler and clearer. There is no change in the meaning.
I turn to a series of amendments that seek to amend the clauses that relate to the approval of major modifications made in urgent cases. Amendments 49, 85, 88, 182, 199, 207 and 233 will reduce the time period within which a judicial commissioner must decide whether or not to approve the modification and notify the issuing authority of this decision from five working days to three. We have already debated equivalent amendments to the targeted provisions in the Bill. We heard during our previous debates how important it is for the security and intelligence agencies to have the operational agility to respond at speed to events in their efforts to keep us all safe. These provisions reduce the time available to judicial commissioners to consider whether to approve a major modification in an urgent case, bringing the period into line with that for the approval of urgent warrants in the Bill. These amendments act as a further safeguard in so far as they limit the time that a modification is in force without being subject to the full judicial commissioner double lock, while still allowing them sufficient time to undertake their deliberations.
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have three amendments in this group—but, first, I thank the noble Earl for the amendment reducing the five-day period in the case of urgency regarding modifications so that it is in line with the urgent issue of warrants. He referred to agility; three days preserves agility as it requires a judicial commissioner to be slightly more agile. More importantly, it is consistent and sensible. We were puzzled during Committee as to why the very similar arrangements about urgency were not consistent with regard to the time period, so we are glad to have taken that step forward.
Two of our amendments, Amendments 40 and 41, also refer to modifications. Clause 34 refers to modifications using provisions about,
“adding the name or description of a person, organisation or set of premises”.
We would add “or varying” to “adding” because it seems that a variation may be as significant as—and in effect amount to—an addition. I acknowledge that under Clause 32, which defines major modifications, variations of “name or description” are included. But Clause 34, to which our amendments would apply, allows modifications which are “necessary” and “proportionate”. Do we actually have consistency here? I am worried that by not allowing for variations within the regime of major modifications, we might let some additions in through the back door.
Amendment 66 would amend Clause 96, which is about the subject matter of equipment interference warrants. There is no restriction on the use of targeted thematic equipment interference warrants, unlike bulk EI warrants, which can be used to obtain only overseas communications data or information and are available only to the security services. Under the clause, there is no limit to the size of,
“a group of persons who share a common purpose”—
although I accept that “common purpose” contains a natural limit—nor to what is meant by,
“more than one person or organisation”.
That has dictated where we have tabled this amendment, which suggests a limit of 50 persons for a single investigation. It is clearly an arbitrary figure but it is there to try to tease out, a little more than perhaps we were able to in Committee, how this will work and how it could not grow in the application to such an extent as to defeat what we see as the purpose of those provisions. So we are not of course wedded to 50 but we are wedded to finding out a little more about the operation of this.
Earl Howe
My Lords, I am most grateful to the noble Baroness for speaking to her amendments so clearly, as she always does. Perhaps I may first address Amendments 40 and 41, which relate to Clause 34. I do not believe that these amendments are in fact necessary. I agree that in circumstances where an agency seeks to add something to a warrant, that should be possible only where it is both necessary and proportionate. That is what the Bill provides, and that necessity and proportionality test applies whether a name or description is being added, or where a factor is being added.
However, I do not agree that a necessity and proportionality test is relevant where a name, description or factor is simply being varied. In such a case, the conduct authorised by the Secretary of State and approved by the judicial commissioner is not changing in substance. An example might be where an individual is identified initially by a nickname but their true identity subsequently becomes known. I will give another example, which I hope will reassure the noble Baroness. During Committee noble Lords expressed concern about warrants against premises. If an agency applies for a warrant against a premises at, let us imagine, 25 Acacia Avenue and it turns out that it actually intended to target 125 Acacia Avenue, in that sort of case the original warrant should be cancelled and the error reported to the Investigatory Powers Commissioner —and an entirely new warrant should be sought. So there are two types of variation, if I may put it that way. One, I suggest, should not require the process that the noble Baroness has suggested; the other also should not require the process because it should be subject to an entirely fresh warrant. I hope that that provides her with the necessary reassurance.
Turning now to Amendment 66, as the noble Baroness explained, the amendment seeks to limit the number of persons that a targeted examination warrant issued under Part 5 may relate to. The amendment would clearly mean that any individual targeted examination warrant that relates to multiple persons for the purposes of a single investigation or operation under Clause 96(2)(c) could not relate to more than 50 persons. I believe that inserting such an arbitrary limit would be a mistake—I know the noble Baroness realises that it is an arbitrary figure—and that it would not add to the strong safeguards already provided for in the Bill.
The decision on whether a warrant is necessary and proportionate is rightly one for the issuing authority and the judicial commissioner. There may be circumstances in which the case for examining the material of more than 50 persons is entirely proportionate to what is sought to be gained from that task. For example, if the security and intelligence agencies are investigating UK-based users of websites hosting illegal child pornography, it would be detrimental and dangerous to limit the number of people they could investigate to a particular figure. This could in some cases result in material relating to dangerous subjects of interest escaping entirely appropriate examination simply because they were past the relevant number that would be set out in statute if this amendment or something like it were accepted.
Mandating that a targeted examination warrant must not relate to more than 50 people would mean either that vital operations could not proceed or that the intelligence agencies would on some occasions need to submit multiple applications for warrants relating to a single investigation or operation. That would needlessly increase the bureaucratic burden placed upon the agencies and the issuing authority while also hampering the ability of the issuing authority and the judicial commissioner to consider the operation in full. Such a restriction would add no additional rigour to the already robust double-lock process.
Introducing an arbitrary restriction does nothing to ensure that the principles of necessity and proportionality are upheld, but the role of judicial commissioners, already provided for by the Bill, does. That is why the Bill requires both the issuing authority and the judicial commissioner to consider, on a case-by-case basis, whether the breadth of a warrant is appropriate without the imposition of indiscriminate limits. In summary, the amendment has the potential to be damaging, needlessly bureaucratic or both, and I invite the noble Baroness not to press it.
Lord Keen of Elie
Lord Keen of Elie
My Lords, the Government have listened carefully to concerns expressed in this House and by the legal profession about the protections in the Bill relating to material which attracts legal privilege, and in response to those concerns the Government propose a number of amendments.
We have already discussed the amendment to the privacy clause which makes it clear that a public authority must consider, when seeking a warrant or authorisation, whether additional protections apply because particularly sensitive material is to be obtained, including that which attracts legal privilege. This sets the context for the additional protections which are set out in subsequent parts of the Bill. It puts beyond doubt the importance of legal privilege. It makes it clear that public authorities must be mindful of the particular sensitivity of material which attracts privilege and must apply the additional protections provided for in the Bill.
The next set of amendments provided for in this group amend Clauses 27 and 107, which set out the protections for items subject to legal privilege in the targeted interception and targeted equipment interference provisions. Amendments 99 and 132 make it clear that it will not be possible to target legally privileged material solely on the grounds that is in the interests of the economic well-being of the UK. Amendments 100 and 133 define the exceptional and compelling test that applies when the intention is to obtain legally privileged material. The Bill is currently silent on this test, and detail as to what it means in practice has been set out in the draft code of practice.
Baroness Hamwee
My Lords, I was wondering whether the noble and learned Lord, Lord Mackay of Clashfern, wanted to speak to his amendment before I came in with my rather more disparate ones. First, I thank the Government very much for the significant amendments which the noble and learned Lord has just introduced. The House will understand that, being members of the legal profession, the noble Lord, Lord Pannick, and my noble friend Lord Lester of Herne Hill were not leaving it there but were going to try to pin everything down. I have already given the apologies of my noble friend Lord Lester, and I need to give those of the noble Lord, Lord Pannick, because of the religious holiday starting just about now. I also thank Tom Hickman of counsel, who drafted the amendments to which I will speak, instructed by the Law Society of England and Wales. As all the dramatis personae seem to come from the same chambers, I did suggest they might have got together over a cup of tea, but that did not happen.
Amendment 27 is an amendment to the amendment expanding the meaning of “exceptional and compelling circumstances”. The government amendment provides that the public interest in obtaining the information must outweigh the public interest in the confidentiality of it. We are of course talking about items subject to legal privilege, and the amendment would provide that it should “clearly” outweigh that second interest. I do not want to get into an argument here, but I suppose a current example would be whether 52 to 48 is a clear difference in the balance of concerns. Where a balance is being struck, it might well be one which is teetering, or where one consideration outweighs the other but barely, so is it not right to say that one public interest in this situation should “clearly” outweigh the other for the provisions to operate?
The next amendments also relate to the use of the intercepted material where the circumstances override privilege. The Bill specifies only such circumstances where a warrant is sought with the express purpose of obtaining legally privileged material or where this is the likely result of the interception. It seems to the Law Society that the principle should apply with equal force when privileged material is obtained as an unintended by-product of interception—for example, in circumstances where a warrant is sought to intercept the telephone of a suspected serious criminal who is not known to have contact with a lawyer but who, after the warrant is obtained, instructs a lawyer and speaks with him or her on his telephone.
The Bill as drafted provides that whenever material is retained, the Investigatory Powers Commissioner must be notified, but the Bill should make it clear that the commissioner should allow use of the material only in exceptional and compelling circumstances, and have express power to direct that the material not be further used, or that it should be destroyed. The amendments to the new clause after Clause 52 and those to the amendments to Clause 144 would address this.
Finally, there are proposals for protection in the Bill for privileged material in the context of communications data. The Government have accepted the principle of such protection but have proposed that it be addressed by the code. The amendment in question seeks to put the provisions into the Bill and not leave the matter to a code, which of course has a different status. It may be a more flexible document, but this issue is so important that a clause closely analogous to that requiring independent authorisation for information which could disclose a journalist’s source, which is in the Bill, should be provided to protect confidential access to legal advice.
I know that the noble and learned Lord has spent a good deal of time considering the detail of these amendments as well as the structure the Government now have, and I am grateful to him for the meeting he held with various legal luminaries and me yesterday. I hope he can accept some or all of these amendments, or help the House with a way forward in capturing in the Bill the points made by them, if not precisely in this form.
Lord Mackay of Clashfern
My Lords, it may be convenient for me to speak about my Amendment 55A, which seeks to amend the new clause proposed in Amendment 55. I approach the Bill on the basis that the security services should get what they require in order to perform their duties adequately for the safety of our country, but the degree to which those powers are given should affect only to a minimum the rights of citizens apart from the Bill. That seems a reasonable approach in looking at these provisions.
As the noble Baroness, Lady Hamwee, said, we are all grateful to the Minister for the amount of consideration he has given to this. I am sure that among the luminaries who were at the meeting yesterday, the noble Baroness would be included. I was not there, I am glad to say; I was at a separate meeting of less luminous people this afternoon.
There are two stages of dealing with privileged information. The first is the decision to make the interception. The provisions that have been put in place in that connection have been referred to, and I have no comment on them. There is a second stage, though, when the material produced by the interception is considered. There is room for a closer use of scrutiny in connection with that. Legal privilege extends to an application to a lawyer for advice and the advice given in consequence of that application. It is possible that, intertwined with those two, other material should arise. For example, the noble Lord, Lord Carlile, spoke in Committee about a lawyer who was handed a letter by a suspect to deliver, and the result of that was rather damaging to the investigation. I think it is clear that the delivery of a letter and the acceptance of that letter by the lawyer was not part of the application for advice or indeed of the advice given, and therefore it would not be covered by legal professional privilege.
I regard legal professional privilege as a fundamental right in our system, enabling a client to consult his solicitor with perfect freedom in relation to any matter on which he requires legal advice. The privilege applies to the application for advice and the advice given, but it extends no further. Therefore, once the interception has taken place, the material is there for consideration. I consider that however difficult it may be to judge in advance before you get the intercepted material, once you get the intercepted material there is scope for deciding to what extent legal professional privilege covers it. I consider that the Interception Commissioner has a very special position and power in relation to that. I therefore believe it is possible for him or her to separate out from the total material intercepted what is truly covered by legal professional privilege. My amendment is intended to permit that and to require that the matter covered by legal professional privilege should not be further used. That should be the principle that preserves our right to legal professional privilege.
The agencies and the Minister have explained that surrounding that may be factual material that is vital to the investigation. The example given is someone who says, “I’m going to Greece. Could I be extradited from Greece?”. The request for information is, “Could I be extradited from Greece?”, while the factual information is that he is going to Greece. If that is the case, I consider that the information about whether or not he can be extradited from Greece is covered by legal professional privilege but the information that says he is going to Greece is not. Therefore, in an edited version of the material, the Interception Commissioner could take out all that was covered by legal professional privilege and decide what use, if any, the remainder could be put to. That is perfectly in accordance with the doctrine of legal professional privilege.
To refer again to a point that the noble Lord, Lord Carlile, made in Committee, it is important that a lawyer should be able to tell his client about the protection. He should be able to tell him that, subject to the iniquity provision, the conference in connection with the request for advice and the giving of that advice is absolutely privileged, but of course it does not cover anything that might be said in addition to that.
It is also possible that the Interception Commissioner might be able, in addition to that kind of separation and editing, to consider whether inferences can be drawn from the way in which the advice was sought. For example, if the client says, without indicating that he is going to Greece, “Can a person be extradited from Greece?”, it could be inferred that he might well be going to Greece and the security services could use that inference as a subject for their investigation, which might help that investigation considerably.
It is therefore possible to use this system at the second stage, the stage at which the material is available to study, to ensure that legal professional privilege is not breached but that the maximum information that is useful to the security services can be extracted from the material that has been intercepted without breaching that principle. That is what I want to achieve with this amendment. I believe it could be better phrased—we had some problem with reception, which I need not go into—but what is required is a power for the commissioner, which could be well expressed by parliamentary counsel, allowing the genuine privilege to apply at the same time as giving to the security services all possible information that they could reasonably use from the material collected. That is the purpose of my Amendment 55A. I am conscious that the draughtsmanship could be improved upon and I would be happy to see that happen, but the principle that I want to achieve is very clear and I think it is well supported by common sense.
Lord Carlile of Berriew
My Lords, I would like to make three points. The first is a general point. I am sure the whole House is grateful to Ministers and all others who have been involved in trying to produce a safe system that provides a public interest exception in relation to legal professional privilege. There was an argument running until a few days ago that there should be no public interest exception, but I do not believe that position is now going to be put forward in this House—certainly not voted upon. Indeed, we can think of examples that may or may not fall within legal professional privilege but could, which would properly be exceptions to which the authority should have regard.
My second point is about Amendment 27 and the proposal that there should be a new standard of proof— new to the criminal law or criminal procedure as far as I know it—containing the phrase “clearly outweighs”. “Clearly outweighs” means no more than the existing civil standard of proof, the balance of probabilities. There is no doubt that those who decide that the balance of probabilities, however expressed, applies will give their reasons in writing. With great respect, because I share the aspiration behind Amendment 27, I think it muddies the waters in an unwelcome way.
I turn with trepidation to Amendment 55A, spoken to with such eloquence by the noble and learned Lord, Lord Mackay of Clashfern. Again, I am sympathetic to what he is trying to achieve, which is to narrow the area for removal or breach of legal professional privilege. It is something which we lawyers regard as near sacrosanct as any concept in the law. My concern is with the word “must” in his amendment. I am happy for an attempt to be made to redraft it, as he recognised might be necessary, but I would not be content to see “must” in any redraft for the following reasons.
When the procedure now set out in Amendment 55 is followed by the Investigatory Powers Commissioner, he—or she—may direct that the item is destroyed or impose conditions as to disclosure, but in making that decision he will be considering a number of contextual issues. Obviously, he will be considering the context at the time when he is making the immediate judgment, but he may also be considering another context. It may well be that it is envisaged that a criminal trial will ensue later.
The rules of disclosure for criminal trials are founded on the notion that the authorities retain material, except in wholly exceptional circumstances. For example, the material retained may materially undermine the prosecution case when a trial takes place, and it is required that evidence that materially undermines the prosecution case should be disclosed to the defence. At the moment when the interception takes place, it may not appear that that might be the result of the material, but it could happen, and the commissioner may well envisage that.
We should not have a provision in which that disclosure cannot occur. One reason why we have had such difficulty making intercept material admissible in court is because of the problems about disclosure. In the case of intercept, the issue is not destruction but huge volume, which makes the normal English and Welsh—and, I believe, Scottish—law requirements for disclosure very difficult to fulfil. There is a risk that the same might happen if there was compulsion of any kind to destroy material.
Answering, as I said, with great trepidation, what has been said by the noble and learned Lord, I oppose any form of compulsion in such a clause. I hope that the Minister will carefully consider that issue before determining whether or not to accept the advice of someone who I know is one of his most esteemed Scottish colleagues.
Baroness Hayter of Kentish Town (Lab)
Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.
The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.
Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.
We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.
Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.
We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.
Lord Keen of Elie
My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.
The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.
The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.
The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.
Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.
The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.
Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.
Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.
I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.
I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.
Lord Mackay of Clashfern
My Lords, I am extremely happy that the noble and learned Lord should look at this matter further. To take his example on Greece and Albania, I think the correct way to deal with that would be to say that it was an inference from the legal advice that he might be going to Albania and you could separate that out from the advice itself as a matter of edit, allowing for inferences from the nature of the arrangement. I think that a little bit of, shall I say, creative editing would make this possible. I am very keen to conserve the idea that legal professional privilege is absolute—that is the purpose of my amendment. I believe that with a bit of ingenuity the Government could devise a formula that would allow that to happen. In the meantime, I am happy not to press my amendment on the basis that it will be considered by the Government, and if necessary, I can return to it at Third Reading.
Lord Keen of Elie
“( ) In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“(3A) But the warrant may not be issued if it is considered necessary only as mentioned in section 20(2)(c).”
Lord Keen of Elie
“( ) For the purposes of subsection (3)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require the interception, or the selection for examination, of items subject to legal privilege unless—(a) the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) in the case of a warrant considered necessary as mentioned in section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is necessary for the purpose of preventing death or significant injury.”
“(7A) Subsections (7B) and (7C) apply if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter,(b) the purpose, or one of the purposes, of the warrant is—(i) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, or(ii) in the case of a targeted examination warrant, to authorise the selection of such communications for examination, and (c) the intercepting authority considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.(7B) The application must—(a) contain a statement that the purpose, or one of the purposes, of the warrant is to authorise or require the interception, or (in the case of a targeted examination warrant) the selection for examination, of communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(b) set out the reasons for believing that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.(7C) The person to whom the application is made may issue the warrant only if the person considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.”
“Confidential journalistic material
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is—(i) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(ii) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
Earl Howe
My Lords, in moving Amendment 30, I shall speak also to the other government amendments grouped with it. We come to the safeguards associated with confidential journalistic material and sources of journalistic information, which have been the subject of significant debate during the passage of the Bill. This package of amendments protects the fundamental role that journalism plays in a healthy democracy. While it is right that the Bill provides for the investigation of individuals where they are suspected of serious illegality or wrongdoing, whatever their chosen profession, it is also right that particularly sensitive professions are afforded specific additional protections.
In limited circumstances, it may be necessary to use the powers provided in this Bill for the necessary and proportionate investigation of a journalist—for example, where they are suspected of serious illegality or wrongdoing or where there is an immediate threat to life. In such circumstances, the Bill and the associated codes of practice already contain significant protections for journalists and their sources, recognising the strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously. So it already places into primary legislation for the first time the requirement for all public authorities to obtain judicial approval for an authorisation to acquire communications data to identify or confirm a journalistic source. We responded to concerns raised in the Commons by clearly setting out in the Bill that the judicial commissioner, a current or former High Court judge, must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving such an application.
On top of that, we went further and introduced Clause 2, the overarching privacy clause, which makes it explicit that public authorities using any power in the Bill must have regard to a number of matters, including whether what is sought to be achieved by an authorisation may reasonably be achieved by other, less intrusive means and the public interest in the protection of privacy. Public authorities would, of course, also be subject to the requirements of the Human Rights Act and all the relevant rights and freedoms that it provides for. Of course, all applications to acquire material must be authorised by a relevant authority and approved by a judicial commissioner. The accompanying draft codes of practice require the Secretary of State, or law enforcement chief for law enforcement use of equipment interference, to apply particular consideration in cases where the subject of the warrant might reasonably assume a high degree of privacy, or where confidential information is involved.
Finally, statutory oversight of the use of investigatory powers, whether in relation to journalists or not, is provided through the creation of the Investigatory Powers Commissioner. Further to this comprehensive oversight regime, the Bill creates a number of offences that apply to the public authorities using the powers to sit alongside existing relevant offences in other legislation. This includes a specific offence of unlawfully obtaining communications data, which will sit alongside the offence of misconduct in a public office in common law, to ensure that, where a public authority knowingly or recklessly acquires communications data without lawful authority, appropriate penalties are available.
My noble and learned friend Lord Keen has already spoken about the government amendment requiring the Investigatory Powers Commissioner to include in his annual report information relating to the operation of particular safeguards, such as those for legally privileged material. I want to make it clear that this requirement also applies to those safeguards protecting confidential journalistic material and sources of journalistic information. It is also important to remember that the Investigatory Powers Commissioner will be able to call on whatever expertise he or she sees fit, and will be provided with sufficient resources to do so. This may be technical or communications expertise or, indeed, professional expertise, such as that of media advisers or lawyers.
We have been clear that the commissioner will lead an outward-facing organisation, and we consider that engagement with professional bodies, such as media representative groups, on how the use of a particular power affects their members is exactly the sort of thing the commissioner and their team should be doing. While we do not think that it would be appropriate to mandate this through legislation, it will form part of the role for the commissioner. These further new amendments will strengthen the safeguards in the Bill even further to ensure that the vital public interest of freedom of expression is protected, while still allowing those who are charged with keeping us safe to continue their vital work.
Amendments 30 and 75 protect the key principle that individuals who provide information to journalists should have an expectation of privacy. The Government accept that it is important that confidential journalistic material is handled with the sensitivity that it deserves. So where a relevant authority applies for a warrant where the purpose, or one of the purposes, is to authorise or require the obtaining of confidential journalistic material, the amendment would require the application to contain a statement confirming that this is the purpose, or one of the purposes.
The same requirement would apply in relation to a targeted examination warrant that seeks to authorise the selection for examination of such confidential journalistic material acquired in bulk. This means that the Secretary of State or law enforcement chief and judicial commissioner will have to be fully aware that they are authorising the obtaining of confidential journalistic material when they come to consider a warrant. The Government are seeking to protect legitimate journalism, while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. That seeks to avoid those such as the media wing of Daesh attracting a safeguard intended for legitimate journalists.
In addition to the requirement to clearly state in the application whether the purpose, or one of the purposes, is to obtain confidential journalistic material, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications containing such confidential journalistic material.
I turn to the amendments which protect sources of journalistic information. A free press cannot operate without journalists, and journalists cannot operate without sources. That is why the Government have focused protections on journalists’ sources and the important public interest in protecting the confidentiality of sources of journalistic information. Amendments 31 and 76 provide further protection by making clear that when a relevant authority seeks a warrant to identify or confirm a source of journalistic information, the application must contain a statement to that effect. This will mean that the Secretary of State or law enforcement chief and judicial commissioner will be fully aware of the intention to identify or confirm a source when they are considering the necessity and proportionality of the warrant. Again, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications that identify sources of journalistic information.
There are a number of consequential amendments which relate to modification of a warrant. These amendments make it clear that, when modifying a warrant when the purpose is to obtain confidential journalistic material, the same factors must be considered as would be the case in an application to obtain confidential journalistic material.
Amendments 53, 90, 194 and 217 will ensure that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. This is an important safeguard. It ensures that the commissioner is fully aware of the confidential material held by the agencies. It assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies.
I turn to the amendments in relation to bulk provisions. Amendments 194 and 217 make it clear that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. It ensures that the commissioner is fully aware of the confidential material held by the agencies and it assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies. There are also a number of consequential amendments on this which provide for the definition of a journalistic source to apply to the Bill as a whole rather than solely to Part 3, as previously drafted.
I hope that what I have said by way of explanation of these amendments demonstrates to the House that the Government have listened to the concerns raised in Committee by a number of your Lordships and to representations from journalists’ organisations and that we have responded in a constructive and helpful way. I beg to move.
Viscount Colville of Culross (CB)
My Lords, I thank the Minister for bringing forward this group of amendments, which will go a very long way to protecting the important relationship between the best journalists and their sources. As a journalist, I know how increasingly difficult it is to nurture a relationship with a whistleblower or an anonymous source who is prepared to reveal confidential information in the public interest. The Bill had been in danger of damaging that bond of trust, as I said in my speech at Second Reading. However, Amendment 30 will now place this relationship at the forefront of the judicial commissioners’ minds. During the passage of the Bill there have been questions about the definition of journalism, but these new amendments will give commissioners the powers to decide whether it is in the public interest to protect a particular source of journalism information.
I have also been concerned that targeted interception clauses would have made journalists covering demonstrations greater targets for those wanting to cause harm. The Bill would have opened the journalists to the threat of being seen as agents of the forces of law and order. This would have compromised their independence and ability to report the incident, not to mention putting them in harm’s way. However, Amendment 75 assuages my fear. The noble Earl and the Bill team have gone far to strengthen these safeguards for journalistic material in the various powers considered, but the new codes of practice will strengthen them even further. My only reservation is that the Bill does nothing to allow notifying the lawyers of reputable news organisations to alert them that a warrant to carry out surveillance on their journalists has been issued. This would have given them a chance to explain the importance of maintaining the confidentiality of a source when a warrant was asked for. However, I trust that the changes brought forward in this group of amendments will allow the commissioner to protect those sources of journalism. I know that the noble Earl and the Bill team have worked long and hard to come up with these amendments and I thank them.
Lord Black of Brentwood (Con)
My Lords, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register. Like the noble Viscount, Lord Colville, I am most grateful to the Government, and in particular to my noble friend the Minister—who has, as always, been the soul of patience and emollience—for listening so sympathetically to the arguments put forward in Committee and for engaging in what seemed like countless constructive discussions with media interests on issues which are of acute importance to a free press.
I welcome the amendments that the noble Earl has brought forward today. They mesh together with Amendments 10 and 11, which form the umbrella for the safeguards being introduced. They go a considerable way to meeting the concerns raised by the media. They do not, of course, go as far as some in the media would have liked in an ideal world. In Committee we looked at prior notification, which the noble Viscount, Lord Colville, has just mentioned. However, we do not live in an ideal world, and it is very welcome that these amendments recognise in the Bill the significance and special importance of journalistic material. Given the particular difficulties of prior notification, which I fully understand, and the fact that we are at a late stage in the legislative process, this package is a practical way forward to keep the structure of the Bill intact, while providing important safeguards, although perhaps limited in some respects for confidential sources.
Lord Rooker
My Lords, I am not a journalism specialist like the noble Viscount, Lord Colville, and the noble Lord, Lord Black. Having listened to the debate, I have a couple of points which I hope the Minister will find supportive. The overall package of the Bill that has now been presented on Report is far more liberal than would ever have come forward from the Labour Government of which I was a member for 12 years. We would have been far less willing to give in the way this Government have. What they have brought forward is remarkable. I can almost prove that. I attended the Labour Party conference in Liverpool, where there were hundreds of fringe meetings every day. I scanned the book, dozens of pages of it, because I was there the previous year when the situation with this Bill was slightly different. Not one fringe meeting was advertised in relation to any part of this Bill. There was nothing about journalism, lawyers or investigatory powers; absolutely nothing compared to the previous two years. I find that quite practical and I hope the Government will find it reassuring.
Lord West of Spithead
My Lords, to add to that, I too am most impressed with the package the Government have come up with. It is really impressive. It shows a great willingness to compromise but does not compromise our security at all. I also pass my good wishes to the noble Earl on the 219th anniversary of his ancestor raising the siege of Gibraltar.
Lord Paddick
I also thank the Minister for this impressive package of amendments. It clearly has to be necessary and proportionate in some circumstances to investigate a journalist. However, I am a little concerned about a law enforcement chief being able to authorise such acquisition through equipment interference, although there is now the reassurance of a judicial commissioner, which did not exist before. I accept what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Black of Brentwood, said about the concern of the National Union of Journalists that there should be prior notification and the ability to make representations. However, I think it is reasonably clear how difficult it would be to differentiate between the cases to which the measure would and would not apply. In all the circumstances, I think that this is more than the best that we could have hoped for. We are very grateful.
Baroness Hayter of Kentish Town
My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,
“information identifying or confirming a source of journalistic information”,
needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.
As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.
Earl Howe
My Lords, I very much appreciate the noble Lord, Lord West, alerting the House to the achievement of my distinguished ancestor, Admiral Earl Howe, in relieving the siege of Gibraltar, to which he referred for the rest of his life as one of his greatest accomplishments. Glad as I am that this package of amendments has received the approval of so many of your Lordships, I cannot claim that it falls into quite the same bracket as the relief of Gibraltar. I am obviously gratified that it has met with the House’s approval.
For the sake of completeness, I should add that we have also undertaken an extensive update of the section relating to journalists and their sources in the existing draft communications data code of practice, providing additional statutory guidance to police forces about handling requests for communications data relating to journalists. This revised version of the code has been published in time for Report, so I refer noble Lords to it.
“Sources of journalistic information
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(For the meaning of “source of journalistic information”, see section 239(1).)(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications that identify sources of journalistic information.”
(i) ”
“(ii) secondary data will or may be obtained under the warrant from communications from, or intended for, the person;”
“( ) In this section any reference to communications from, or intended for, a person or organisation includes communications from, or intended for, anything owned, controlled or operated by that person or organisation.”
“( ) Subsections (2)(d) and (e) and (3) do not apply in the case of a mutual assistance warrant addressed to a person falling within section 18(1)(h) (competent authorities of overseas countries or territories).”
“( ) subsection (3) of this section applied for the purposes of subsection (1) of that section as it applies for the purposes of subsection (1) of this section.”
“and, in a case falling within subsection (2) above, section 23(5) does not apply in relation to the refusal to approve the decision.”
Lord Rosser
“( ) If a copy of a warrant served on a person outside the United Kingdom is within the scope of an international mutual assistance agreement, then—(a) the copy of the warrant must be endorsed with a statement that it is served pursuant to the agreement;(b) the intercepting authority must act in accordance with the agreement;(c) without prejudice to section 41(4), a telecommunications operator who takes reasonable steps to cooperate with the intercepting authority, pursuant to the agreement, shall be deemed to have fulfilled the duty imposed by section 41(1).”
Lord Rosser
This amendment is designed to ensure that where a warrant falls within the scope of an international agreement between the United Kingdom and a foreign Government, the requesting agency is bound to notify the receiving provider and follow the terms of the agreement, along with the authorisation, transparency and oversight requirements of the Bill, and thus establish such agreements as the primary route by which UK agencies request data from overseas operators where such agreements exist.
In its present form the Bill appears to provide UK agencies with several options to seek data from overseas providers. These include mutual legal assistance treaties, mutual legal assistance conventions, international agreements of the kind recommended by Sir Nigel Sheinwald in his report, and straightforward service of a UK warrant extraterritorially. The Bill does not direct agencies as to which power to use and under what circumstances.
What is being sought is a direction to agencies on the face of the Bill to prioritise international agreements where they exist so that they become the primary route by which UK agencies request data from overseas providers, and that this will make it more likely that these agreements will become models for other Governments. Achieving this should provide a more predictable approach for both agencies and providers and reduce the likelihood of a situation where a number of Governments claim jurisdiction over data. I beg to move.
Lord Paddick
My Lords, I have added my name to the amendment of the noble Lord, Lord Rosser, because we on these Benches entirely agree with it. There is a difficulty in the UK asserting unilateral power over other territories in terms of enforceability if nothing else. Clearly, if there is an international agreement, it is far better that that is used as the primary route to achieve the government agencies’ objectives than relying on a slightly dubious assertion of the UK’s power overseas. On that basis, we support the amendment.
Earl Howe
My Lords, I am grateful to both the noble Lord, Lord Rosser, and the noble Lord, Lord Paddick, for the way they introduced this amendment. Of course, its context, as the House will be aware, is the position of this country vis-à-vis the United States. I welcome the opportunity to respond to the amendment because it provides me with a chance to update the House on the progress of the proposed bilateral agreement between the United Kingdom and the United States on the issue of access to data across jurisdictions.
The UK and United States Governments have been considering a framework under which communications service providers based in one country could disclose data directly to the other for serious criminal and counterterrorism investigations when required to by a valid warrant or order, without facing a conflict of law. We need to address the situation—highlighted by Sir Nigel Sheinwald, David Anderson, and indeed some US-based companies themselves—where the content of communications between UK nationals, in the UK or in third countries, who are planning or committing crime in the UK, or others who pose a direct threat to the UK both here and abroad, can be beyond the reach of UK law enforcement simply because the data that relate to their communications happens to be stored in the United States.
I am pleased to say that in July 2016 the US Government sent a legislative proposal to Congress that, if passed, would pave the way for a bilateral agreement between the UK and US Governments. The legislation and agreement would help ensure that US-based communications service providers were able to respond to lawful orders from the UK by removing any perceived conflict of law that may previously have prevented co-operation. It would include strong safeguards and so maintain rigorous privacy protections while providing a means for UK agencies to make targeted requests for data relating to serious criminality. This type of agreement would be good for business, which requires greater certainty in the face of any conflict of laws; good for the public, because it would increase levels of transparency and oversight, while also ensuring that they are protected from key threats; and good for the internet, because it would avoid the challenges posed by data localisation and the balkanisation of the web.
We hope that such an agreement can be in place as soon as possible. However, any timetable will of course depend on the changes required to the relevant US legislation. We hope that these can be agreed quickly. Clearly, it would not be right to specify something that does not yet exist as a primary route in the Bill. However, I can reassure the House that, in practice, of course the intention is that such an agreement between the United Kingdom and the United States would be the primary route through which UK agencies access data from US-based communications service providers where it is within the scope of the agreement.
We have always sought to work with companies so that they are able to meet their obligations under UK law. This agreement will help to facilitate exactly that co-operation—so the amendment is not necessary. It is worth repeating what the Prime Minister said in March when she was Home Secretary: any company co-operating with its obligations through an international agreement will of course not be subject to enforcement action through the courts. I hope that these remarks are helpful, and for the reasons given I invite the noble Lord to withdraw the amendment.
Lord Rosser
I thank the Minister for his reply and for the update on the discussions that are taking place towards an agreement that I hope will resolve some of the current difficulties. I am quite sure that the Minister’s words and the information he has given will be read with interest, not only within this House but outside it. I thank him for his reply and beg leave to withdraw the amendment.
“( ) Where—(a) a communication which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication that contains confidential journalistic material or identifies a source of journalistic information,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the item.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and (b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the person who decided to issue the warrant;(b) the person to whom the warrant is or was addressed.”
Lord Butler of Brockwell
Lord Butler of Brockwell (CB)
My Lords, Amendment 58 and others in this group are also in the names of my noble friend Lord Janvrin and the noble Marquess, Lord Lothian. Amendments 58 and 59 are in fact consequential amendments. The substance is in Amendments 195, 203, 217 and 241, the purpose of which is to introduce specific penalties for misuse of powers concerned with bulk collection of data. Amendment 195 introduces penalties for the wrongful examination of material collected under bulk interception; Amendment 203 for the wrongful examination of bulk collection of communications data; Amendment 217 for the wrongful examination of data obtained from bulk equipment interference; and Amendment 241 for the wrongful examination of datasets collected in bulk. I make it clear that I do not believe that these powers are needed to deal with current abuse of powers by the intelligence agencies, nor because I expect the agencies to abuse the powers in the Bill in the future. I know enough of the agencies to know that their standards in these matters are high.
The reason for introducing these clauses is that the Bill gives exceptional powers, and the powers in respect of bulk collection have given rise to the greatest public concern. There are already specific offences for the misuse of other powers in the Bill; for example, targeted interception and access to communications data. Penalties for the misuse of equipment interference are covered by other legislation; for example, the Computer Misuse Act. However, at present there is no specific offence on powers which cause most concern to the public—the powers for bulk collection. For misuse of these powers, reliance would have to be placed on the general purposes in the Data Protection Act, on internal discipline or on the very general offence of misconduct in public office. There is clearly an unevenness here. The misuse of information collected under bulk powers should be subject to specific penalties like the misuse of other powers in the Bill. This matter was raised in Committee and I am glad to say that the Government have listened; we are very grateful for the discussions that have taken place.
I also make clear that it is no part of my intention that members of the intelligence agencies should be inhibited in their legitimate searches by fear that they may accidentally incur these penalties. Amendments 195, 203, 217 and 241 restrict the offence to cases where persons deliberately choose to examine material which they know or believe is not authorised under the Bill, so only deliberate misuse would be caught by these provisions.
I believe that these amendments are justified and that they introduce a proper balance into the Bill. I also believe that they satisfy the intentions of the Intelligence and Security Committee of Parliament, which drew attention to this unevenness. I am very grateful to the staff of the ISC and to the government Bill team for their help in formulating the amendments. I beg to move.
Lord Paddick
My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.
Baroness Hayter of Kentish Town
My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.
Lord Keen of Elie
My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.
In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.
Lord Butler of Brockwell
Lord Keen of Elie
(a) a member of the panel of the inquiry,(b) a person appointed as legal adviser to the inquiry,(c) a person who is a relevant party to the proceedings,(d) a person representing such a person for the purposes of the proceedings, or(e) a person performing functions necessary for the proper functioning of the proceedings.”
Lord Keen of Elie
My Lords, I shall now introduce a number of government amendments concerning the disclosure of information in relation to warrants.
Amendments 60 and 61 clarify those persons who may be present during restricted proceedings of an inquiry, as provided for under the Inquiries Act 2005, when intercept material is disclosed or examined. The proposed changes make it clear that intercept material can be disclosed in restricted proceedings only if restrictions are in place to prohibit attendance by anyone other than those individuals listed in Amendment 61.
I move on to Amendment 62. Clause 54 imposes a duty not to make unauthorised disclosures in relation to warrants issued under Part 2 of the Bill or Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 55 sets out the circumstances in which such a disclosure is permitted. This amendment corrects a minor error in relation to Clause 55, which would allow a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure of material in relation to the warrant if it was in accordance with a statutory purpose. The person referred to here would be a competent authority outside the United Kingdom, such as a foreign law enforcement agency. We do not wish to allow for such a disclosure and the amendment simply removes the ability of a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure in relation to that warrant.
Amendments 63 and 93 do not change the meaning of Clauses 55 and 125 but simply clarify the excepted disclosure provisions in the Bill. This minor change makes it clear that a disclosure of information made by a legal adviser in relation to a warrant is not an “excepted disclosure” where the intention is to further a criminal purpose.
Amendments 64 and 94 relate to Clauses 55 and 125, which provide for certain disclosures to be made in relation to warrants. These amendments propose changes to the regulation-making power by which the Secretary of State may provide for permitted disclosures of statistics in relation to warrants.
These changes will permit communications service providers to publish greater statistical detail about the warrants to which they have given effect. The regulations may, for example, permit companies to publish not only data regarding the number of warrants to which they have given effect but details relating to the number of customer accounts that are subject to warrants issued under the Bill. This demonstrates the Government’s commitment to ensuring that, in addition to improving the safeguards around the use of investigatory powers, we are also increasing transparency by providing for more information to be made available to the public on the number of times these powers have been used. Accordingly, I invite noble Lords to support these government amendments, technical as they are.
“( ) In this paragraph “relevant party”, in relation to any proceedings of an inquiry, means—(a) any person making a disclosure to the panel of the inquiry, or to a person appointed as legal adviser to the inquiry, in accordance with paragraph 22(1);(b) any person giving evidence to the inquiry in circumstances where, in the absence of sub-paragraph (1), the prohibition imposed by section 53(1) would be breached;(c) any person whose conduct is the interception-related conduct (within the meaning of section 53) to which the disclosure or evidence relates (whether or not that conduct has in fact occurred);(d) any other person to whom the subject-matter of the disclosure or evidence has been lawfully disclosed in accordance with section 55.( ) Any reference in this paragraph to a person appointed as legal adviser to an inquiry is to be read in accordance with paragraph 22(3).”
“( ) But subsection (2)(b) does not apply in the case of a mutual assistance warrant that is or was addressed to a person falling within section 18(1)(h) (competent authorities of overseas countries or territories).”
“(ii) consists of statistical information of a description specified in the regulations;”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
“and section 103(5) does not apply in relation to the refusal to approve the decision.”
“( ) In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“(3A) But the warrant may not be issued if it is considered necessary only as mentioned in section 97(5)(c).”
“( ) For the purposes of subsection (3)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require interference with equipment for the purpose of obtaining, or the selection for examination of, items subject to legal privilege unless—(a) the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) in the case of a warrant considered necessary for the purposes of preventing or detecting serious crime or as mentioned in section 101(3)(a), obtaining the information is necessary for the purpose of preventing death or significant injury.”
“(7A) Subsections (7B) and (7C) apply if—(a) an application is made for a warrant under this Part,(b) the purpose, or one of the purposes, of the warrant is—(i) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information that, if they were not communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose, would be items subject to legal privilege, or(ii) in the case of a targeted examination warrant, to authorise the selection of such communications or other items of information for examination, and (c) the applicant considers that the communications or the other items of information (“the targeted communications or other items of information”) are likely to be communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose.(7B) The application must—(a) contain a statement that the purpose, or one of the purposes, of the warrant is—(i) to authorise or require interference with equipment for the purpose of obtaining communications or other items of information that, if they were not communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose, would be items subject to legal privilege, or(ii) (in the case of a targeted examination warrant) to authorise the selection of such communications or other items of information for examination, and(b) set out the reasons for believing that the targeted communications or other items of information are likely to be communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose.(7C) The person to whom the application is made may issue the warrant only if the person considers that the targeted communications or other items of information are likely to be communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose.”
“Confidential journalistic material
(1) This section applies if an application is made for a warrant under this Part and the purpose, or one of the purposes, of the warrant—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 122 or (as the case may be) section 177 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications or other items of information containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
“Sources of journalistic information
(1) This section applies if an application is made for a warrant under this Part and the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(For the meaning of “source of journalistic information”, see section 239(1).)(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 122 or (as the case may be) section 177 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications or other items of information that identify sources of journalistic information.”
“and, in a case falling within subsection (2) above, section 103(5) does not apply in relation to the refusal to approve the decision.”
“and section 103(5) does not apply in relation to the refusal to approve the decision.”
“( ) Where—(a) material obtained under a targeted equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and (b) it is material that contains confidential journalistic material or identifies a source of journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege is retained for purposes other than the destruction of the item following its examination under a warrant issued under this Part.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the issuing authority (within the meaning given by section 122(11));(b) the person to whom the warrant is or was addressed.”
“(ii) consists of statistical information of a description specified in the regulations;”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Baroness Chisholm of Owlpen (Con)
Because everything has gone so quickly, I beg to move that the House do adjourn during pleasure until 7.30 pm.
Investigatory Powers Bill
Monday 17th October 2016
(8 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
16:25 - Division on Amendment 100C - Ayes: 78 / Noes: 314 - Amendment 100C disagreed.
17:35 - Division on Amendment 118A - Ayes: 75 / Noes: 293 - Amendment 118A disagreed.
(i) to obtain the data (if not already in possession of it), and(ii) to disclose the data (whether already in the person’s possession or subsequently obtained by that person)”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I shall speak also to the other government amendments with which this is grouped.
This group contains the government amendments in relation to the acquisition of communications data under Part 3 of the Bill. Starting with Amendments 96 to 100, a designated senior officer may believe that a communications service provider has the communications data he or she requires and grants an authorisation or issues a notice to that provider for disclosure of the data. However, in such a case the provider may not actually have the data but is able to obtain it. The Bill already provides for an authorisation or notice in respect of such data. These amendments simply make it clear that a second authorisation or notice for the same data and for the same purposes is not required in these circumstances. I trust the House will agree that these are sensible amendments, ensuring that neither the public authority nor the communications service provider is unnecessarily burdened.
Amendments 101 to 103 update Schedule 4 in two ways. The first is through minor and technical amendments to the description of the minimum rank for authorising communications data requests within the Competition and Markets Authority and the Police Investigations and Review Commissioner in Scotland. These amendments correct an error and reflect an organisational restructure in the respective organisations. Secondly, they add the Department for Communities in Northern Ireland to the list of public authorities which may acquire communications data for the purpose of preventing or detecting crime or preventing disorder. Communications data are of course a vital tool in investigations to detect, prosecute and prevent benefit fraud, providing vital investigative leads that would not otherwise come to light. These amendments ensure that the Department for Communities in Northern Ireland has the same powers as its English counterpart, the Department for Work and Pensions. They will allow it to continue to investigate crimes, such as organised attacks on the benefits system.
On Amendments 104 to 106 and 109 to 114, the collaboration agreement provisions in this part of the Bill are intended to ensure that, where necessary and appropriate, one public authority can make use of another public authority’s authorising and single point of contact expertise. They will bolster the strength of the regime by allowing for the sharing and use of best practice and experience. These minor and technical amendments will ensure that public authorities can enter into collaboration agreements and benefit from them without any unintended consequences. For example, they would ensure that two public authorities could collaborate with each other, even though the purposes for which they can each acquire communications data are different. They would also ensure that restrictions, such as the requirement for local authorities to seek magistrate approval for their requests for communications data, operate properly under collaboration agreements.
Similarly, the amendments make clear that single points of contact in a public authority can themselves obtain the communications data from communications service providers on behalf of the authorising officer in the collaborating public authority, as well as provide their advisory function. The single point of contact already performs this role in respect of requests authorised within the same public authority, and this amendment was needed to ensure that nothing in the collaboration provisions casts doubt on their ability to perform that role. I hope the House will agree these amendments to improve the regime.
Finally, on Amendment 259, it has always been the case under RIPA that a public authority can request data that may reasonably be obtained by a communications service provider as well as data which it holds. This fact has been reflected in the telecommunication definitions in the Bill, which make clear that communications data includes data which are, are to be or are capable of being held or obtained by a telecommunications operator. This amendment does no more than ensure that the definition of communications data in the postal context is consistent in this respect. I beg to move.
(a) to obtain the data (if not already in possession of it), and(b) to disclose the data (whether already in the operator’s possession or subsequently obtained by the operator)”
“( ) An authorisation may be considered necessary on the grounds falling within subsection (7)(b) or (f) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed and it is reasonably believed that the communications data sought will be relevant to the criminal investigation.”
Baroness Jones of Moulsecoomb (GP)
My Lords, with this amendment I make a further attempt to introduce into the Bill a requirement on the authorities to demonstrate reasonable suspicion of a serious crime and a nexus between the communications data that are sought and the crime suspected before a targeted surveillance warrant can be authorised.
As I pointed out previously when speaking to Amendment 20, one of the greatest problems with the Bill is the lack of a requirement for reasonable suspicion in order for surveillance powers to be authorised for the purpose of preventing and detecting a crime. At the moment, intrusive powers can be authorised to prevent and detect serious crime, but this general purpose is left wide open to very broad interpretation, and therefore to abuse, without requiring the authorising authority to verify the existence of reasonable suspicion of criminality. A requirement of reasonable suspicion when the purpose of preventing and detecting serious crime is invoked would prevent the potential abusive surveillance of law-abiding citizens, which we have seen in the past, without unduly limiting the legitimate use of surveillance powers.
The threshold of reasonable suspicion has long been an important safeguard for both citizens and law enforcers against the risk of the arbitrary use of police powers. The “necessary and proportionate” standard invokes an important assessment of the extent of the intrusion but does not necessitate a threshold of suspicion. Although would one expect that in practice targets of surveillance would meet this very modest burden of proof, in my view it is a great mistake not to include the threshold of reasonable suspicion in the Bill, and it leaves these powers ripe for abuse. Therefore, I make no apology for returning to this issue once again.
The amendment simply requires, first, a threshold of reasonable suspicion that a serious crime has been planned or committed and, secondly, a factual basis for believing that the targeted communications data will contain information relevant to the criminal investigation. This would reassure the public that intrusive targeted surveillance could be used only where there was reasonable suspicion of a serious crime. To that end, I hope the Government will accept the amendment. I beg to move.
Lord Rosser (Lab)
This amendment relates to Clause 58, which some people, although not the noble Baroness, Lady Jones, have referred to in the context of a recent opinion by the ECJ Advocate-General in the case involving Tom Watson MP. We do not support the amendment but I want to make it clear that the fact that we are opposed to it does not mean that we have decided that the clause as it stands meets the opinion of the ECJ Advocate-General in the case now before the European Court of Justice involving Tom Watson MP and relating to retaining and accessing communications data, should that opinion be reflected in the judgment of the court when it is delivered. I want to make that statement as there may be those who, for some reason or another, have come to the conclusion that the fact that we have not tabled any amendments to Clause 58 means that we believe that the clause will cover the position of the Tom Watson case if the judgment of the court proves in line with that of the opinion of the ECJ Advocate-General.
Lord Beith (LD)
My Lords, I applaud any attempt to make the definitions precise but there comes a point when there is a negative consequence. I am slightly worried that the wording of the amendment—certainly as drafted—could inhibit the activities of law enforcement in establishing a pattern in the development of criminal behaviour and activity, particularly in the area of organised crime, if it were to be interpreted as strictly as its wording invites. Although the intention of the amendment is good, I am not yet persuaded that it can safely be included without an undesirable inhibition of a particularly important area of activity at the moment—namely, establishing whether groups with well-suspected criminal intent might be planning something worse.
Baroness Hamwee (LD)
My Lords, the noble Lord, Lord Rosser, has set perhaps the hardest task for the Minister today in asking him to comment on what was perhaps not a coded speech but simply one inviting speculation.
Turning to the amendment itself, as on the first day of Report we are sympathetic to where the noble Baroness is coming from. Indeed, I think we had an amendment on “reasonable suspicion” at an earlier stage. However, perhaps again I should phrase what I have to say as a request for confirmation, as my noble friend Lord Paddick did last week. Reasonable suspicion is encompassed by the necessity and proportionality test. The way the noble Baroness has expressed it is that there is a moderate-sized hurdle to be got over and then a higher hurdle to be surmounted, by having “reasonable suspicion” and then the necessity and proportionality test. To keep up the athletic metaphor, you will not get over the higher hurdle even if you get over the lower one, so it seems to us that you might as well just have the higher hurdle. Perhaps we can be given some more assurances about how the different criteria will bite.
Earl Howe
My Lords, I listened carefully to the noble Baroness, Lady Jones of Moulsecoomb, and I am grateful for the case she has put. However, I cannot agree with it, and I will explain why that is.
As the noble Baroness explained, this amendment seeks to provide that certain communications data authorisations can be approved only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. In short, the amendment would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. I will now set out why I believe that is so.
I shall start with the requirement for reasonable suspicion. As we discussed and agreed in this House last week, the necessity and proportionality test is established and well understood. It is difficult, therefore, to see what benefit would be derived from inserting a different test. Indeed, in order to approve an authorisation for communications data for the purpose of preventing or detecting crime, a sufficiently compelling case will always be required—a speculative authorisation would never be approved. Therefore, I suggest that the amendment responds to a concern that is fundamentally misplaced.
Turning to the serious crime threshold that this amendment would insert, assuming that the noble Baroness intends the threshold to be equal to that currently used to authorise the interception of communications, I believe once again that the amendment is inappropriate and damaging. Taking effective action against serious criminals often requires the investigation of, if I may use the phrase, lower-level individuals for activities that are not considered serious crimes in order to build a case against higher-ranked criminals. It may also include the investigation of minor offences where stopping an offender at this point may prevent an escalation of their criminal activities, such as in stalking and grooming cases.
It might be helpful if I expand on that. Placing this additional restriction on the acquisition of communications data would disrupt police investigations of online grooming and linked crimes, such as the sending of sexual communications to a child. This is because where such activity does not meet the high threshold proposed, which will often be the case if the child is over the age of 13, it may be impossible to identify perpetrators who may go on to be involved in child sexual exploitation. As such activities increasingly take place online, law enforcement agencies will rely heavily on communications data and the new power in relation to internet connection records in order to investigate this.
The amendment would also reduce the ability to investigate online fraud, which affects everyday internet users who shop or bank online, but which could, depending on the value of the fraud, fall below the serious crime threshold proposed here. Equally, the Department for Work and Pensions, for instance, investigates false tax credit claims which can result in the collective overpayment of millions of pounds of taxpayers’ money, but these false claims may not individually reach the threshold of serious crime. Communications data are currently used to investigate such activity.
I also believe that these amendments are unnecessary given the strict safeguards that already apply to the use of communications data. Data can be accessed only on a case-by-case basis and only where judged necessary and proportionate by a senior officer of a rank specified by Parliament and who is independent of the investigation. Strong judicial oversight will also be provided by the Investigatory Powers Commissioner.
I was grateful to the noble Lord, Lord Rosser, for qualifying his party’s position on this part of the Bill. We maintain that our existing regime and the proposals in the Investigatory Powers Bill are compliant with EU law, but whatever the final judgment, given the importance of communications data to preventing and detecting crime and safeguarding national security, we will ensure that plans are in place so that the police and others can continue to acquire such data in a way that is consistent with our obligation. I hope that that is helpful.
Lord Rosser
The Minister appears to be saying that the Government’s position is the same as ours, and that you cannot express a view on whether the law as it stands, as reflected in the Bill, meets the judgment of the European Court of Justice until we have seen and read what that judgment is.
Baroness Jones of Moulsecoomb
I thank all noble Lords who have given me some support: it is something that I feel very strongly about. I thank the noble Earl for his full reply. Needless to say, I am not convinced because all of the issues that he talked about are in fact potentially serious crimes, so the threshold would be satisfied.
If the noble Earl had spoken to some of the people who had been blacklisted, for example, and whose lives were basically destroyed because of illegal surveillance and co-operation by the police with various organisations, it is possible that he would have been influenced in the same way that I have been. However, in view of the noble Earl’s answer, I beg leave to withdraw the amendment.
Baroness Hamwee
“( ) Communications data obtained for any of the purposes listed in subsection (1)(b)(ii) may not be used or disclosed other than for those purposes and must be destroyed as soon as possible after the data has been used for the purposes for which the data has been obtained.”
Baroness Hamwee
My Lords, I move this amendment in my name and that of my noble friend Lord Paddick. The issue of destruction of material was raised by the Government last week in respect of legal professional privilege. In that case, the Minister proposed and the House agreed that when an item subject to legal privilege is intercepted and obtained, the Investigatory Powers Commissioner can impose conditions as to its disclosure or direct destruction. We proposed a further safeguard about destruction, which the Minister is considering—he said that he would like to return to it at Third Reading—but which he thought was essentially a good idea, and we recognise the Government’s approach as something that we want to build on.
Amendment 100A is in the same area. There are destruction requirements elsewhere in the Bill. Clause 58(1) deals with what is necessary and proportionate for a targeted authorisation for obtaining data. It is necessary in one of the cases set out in subsection (1)(b),
“for the purposes of testing, maintaining or developing equipment systems or other capabilities relating to the availability or obtaining of communications data”.
The amendment would provide that data obtained for any of these purposes may be used only for such purposes. The Minister may say that that must be so and critically that,
“it must be destroyed as soon as possible after the … purposes”,
have been fulfilled. We believe that it must be the case that data obtained for testing systems should be subject to such a safeguard because, by definition, they are not required for a specific investigation and are therefore not necessary in the interests of national security or any of the other purposes set out in Clause 58(7). If data are required for a specific investigation, then those other provisions will kick in.
The destruction requirement that we are seeking is confined to the very narrow situation of the testing of systems. I hope that the Minister will agree to this, but if not that he will at least explain how data obtained in that situation are to be destroyed so that they do not hang around, as it were—which is probably not a technical phrase. I beg to move.
Earl Howe
My Lords, I hope that I can reassure the noble Baroness. Amendment 100A is unnecessary since the use, retention and destruction of all personal data held by public authorities, including communications data, are already regulated by the Data Protection Act 1998. That means that, once communications data have been obtained, there must be a lawful purpose for their use and ongoing retention, and they must be destroyed when they are no longer held for a lawful purpose. I would draw the attention of noble Lords to Chapter 11 of the Communications Data DRAFT Code of Practice, which sets out detailed requirements, consistent with the Data Protection Act, on public authorities about the use, disclosure, protection and destruction of the communications data they hold.
In addition, the amendment would unnecessarily, and in some cases very damagingly, require a public authority to destroy communications data it had obtained once they had been used for the purpose for which they were acquired, but other legitimate and important purposes for holding data may still exist. For example, a public authority is obliged by law to retain material it holds that has been used in evidence to support a conviction in case of appeal or to overturn a potential miscarriage of justice. It is also obliged to retain any material that is potentially exculpatory, even if it considers that it no longer requires the data for the original purpose for which it was acquired. This amendment would cut across those important tenets of our criminal justice system and I cannot imagine that that is what the noble Baroness wants to see.
I hope that, in combination, what I have been able to explain will reassure her sufficiently to enable her to withdraw the amendment.
Baroness Hamwee
I should obviously have included something like the words “except as otherwise required by law”. I am grateful for that explanation and I am sympathetic to the Government trying to get everything into the Bill, but here we find yet another example of another piece of legislation that we need to look at. However, it is helpful to have the explanation, and I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
My Lords, when the Bill was going through the House of Commons, the Government made a commitment to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime that the Government came up with in Committee appeared workable and appropriate.
But last April, the then Home Secretary told the then shadow Home Secretary that restricting internet connection records to serious crime would hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police progressing investigations where there may be a threat to life but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.
While we welcome the fact that specific offences such as stalking and harassment have been addressed and can lead to access to internet connection records, we have continuing concerns around the definition of “other relevant crime”, which is too broad and could still lead to the use of internet connection records in relation to crimes that would not be regarded as serious.
Currently the Bill defines “other relevant crime”, with some caveats, as,
“an offence for which an individual … is capable of being sentenced to imprisonment for a term of 6 months or more”.
The Government have recently stated that this threshold rules out the use of internet connection records for a large number of minor crimes, including those which are not subject to a custodial sentence and those which are subject to only a one-month or a three-month custodial sentence. The Government have also indicated a number of offences in respect of which the use of internet connection records would be excluded if the threshold in respect of “other relevant crime” was increased from six months to a sentence that is capable of attracting a custodial sentence of 12 months or more. Those offences which would then be excluded include motoring offences such as joyriding, driving while disqualified and failure to stop or report an accident; an offence of criminal damage under £5,000; some sections of the Public Order Act which do not amount to violence; and certain immigration offences and some offences relating to the supply of intoxicating substances or controlled drugs.
Our amendment would increase the qualifying term of imprisonment from six months to 12 months or more. This would exclude the kind of offences to which the Government have referred. One accepts that such offences can have significant consequences, but we do not regard them as serious in the context of the purpose for which access to internet connection records is required—and nor do we think that raising the threshold to 12 months’ imprisonment in respect of other relevant offences makes it difficult to pursue matters related to the kind of offences to which the previous Home Secretary drew attention and to which I referred earlier.
I hope that the Government will feel able to give a helpful response to this amendment, which seeks to address concerns that access to internet connection records could be used in inappropriate circumstances for which the Bill is not intended—notwithstanding the fact that any such access to internet connection records must meet the necessity and proportionality requirement, which some might argue should exclude much low-level offending. I beg to move.
Baroness Hamwee
The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Government have consistently recognised that care must be applied to the acquisition of internet connection records and, importantly, that they should not be acquired for trivial purposes. That is why we brought forward amendments in Committee to put in place a number of restrictions to provide reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments included a threshold which would mean internet connection records could only be used to investigate certain crimes which could attract a sentence of at least six months’ imprisonment.
This amendment raises the threshold for offences which are sufficiently serious that an offender can be sentenced to at least 12 months’ imprisonment, rather than six. The amendment rightly leaves unchanged the important exceptions in the Bill to the crime threshold. The House has recognised the need to ensure that internet connection records can be obtained for the investigation of certain specified types of crime—for example, those relating to cyberbullying and harassment, and those relating to a breach of a person’s privacy—which, for whatever reason, carry a lower sentencing limit.
We recognise that this amendment will provide further reassurance and ensure public trust in the use of these vital powers, whose value and importance have been widely recognised and acknowledged. In these circumstances, we are therefore content to accept the amendment.
Lord Paddick
Lord Paddick (LD)
My Lords, I shall also speak to Amendments 100D and 100E in my name and that of my noble friend Lady Hamwee. The effect of these amendments would be to remove the request filter from the Bill. No doubt, the name “request filter” has been chosen for its potential to be beneficial in terms of limiting intrusion into privacy, while at the same time I believe it conceals its true nature and the considerable downsides that such a thing would have. I am struggling to find a word that describes something that does not exist and which the Home Office is unable to describe except in terms of its proposed positive outcomes. When I visited both the law enforcement and security agencies in preparation for the Bill they could throw no more light on the detail of this proposal or give any reassurance as to its security. What we know is that it is something akin to a Google search engine, a system built and possibly operated by the private sector on behalf of the Home Secretary. The request filter will act as the go-between between law enforcement and security agencies and the communications providers.
We have had lots of debates in the course of the Bill on the trustworthiness of the police and the security services. Perhaps it would not be too unkind to say that the security services have come out on top, with law enforcement agencies trailing slightly. When we consider the Government’s failure to implement such measures already in legislation, such as the Privacy and Civil Liberties Board and the Leveson recommendations, one might not be too severely criticised for putting the Government a poor third in this line-up of trustworthiness. The request filter would give the Government, in the guise of the Home Office, unfettered access to communications data, including internet connection records. Of course, having unfettered access would also mean that, if security were to be breached, it would provide criminals and hostile foreign Governments with similar unfettered access to private and confidential information of every subscriber to UK communications and internet services.
At present, as noble Lords will be aware, almost every request for communications data—of course, that does not include internet connection records, because these are not part, yet, of communications data—is made by investigators to a single point of contact in their own organisation. The SPOC, as they are known, assesses the validity of the request and, if satisfied, passes it to the communications provider, which again assesses whether it is a valid claim. There is, in effect, a double lock: an independent and specially trained SPOC and an independent and specially trained person in the communications company, both of whom can block unnecessary and disproportionate requests.
As far as anyone can understand such a vague concept as the request filter, it appears that it would be linked into the communication providers’ databases and be able to search and retrieve data with no independent check. The Government may say that the people operating the request filter will be the independent check, but they will be Home Office officials or staff of a private company working on behalf of the Secretary of State. Not many of us, and certainly very few members of the public, would rest assured that their sensitive personal information was in the hands of politicians or those acting on their behalf.
Lord Carlile of Berriew (LD)
My Lords, I regret that I cannot support my noble friends’ attempts to remove these clauses from the Bill. I say with great respect to them that it is a misconceived attempt and displays a misunderstanding of what the authorities do, have done and can do. In my judgment, for what it is worth, the removal of these clauses would reduce the capacity of the authorities legitimately to interdict what could be extremely serious crime and catch those guilty of it.
We have heard terms such as “limitless”, “monster” and “unfettered”. At the risk of repeating what has been said earlier on Report, it is grossly exaggerated to suggest that unfettered, monstrous or limitless power is being given to the authorities. There can never have been a Bill on subjects such as these that has had so many fetters on the authorities and that has placed so many limits on what they can do. Indeed, if it has created a monster at all, it is a monster of regulation, not of unregulated activity.
I saw a briefing on these amendments earlier today. They are founded on the proposition that the authorities—the police and the security services—have the time to go on fishing expeditions. If that is what is being said, I can think of at least two kinds of fishing expedition. One is the sort of fishing expedition where you stick a worm on the end of a line and dangle it into water not believing that there is anything in there, and the other involves casting a sprat to catch a mackerel. If there is a fishing expedition here, it is the kind in which the authorities would know that there is very likely to be a mackerel beneath the water into which they cast their well-fattened sprat.
These amendments would inhibit current practice in the courts and in investigations. I can think of two murder cases in which I appeared as leading counsel—one as a prosecutor, the other as a defender—in which a conviction resulted from exactly the kind of activity being permitted in the Bill. In each case, it is certainly possible—I do not want to exaggerate—that there would have been no conviction if not for the availability of this kind of activity. At the time of each of those cases, the activity was nothing like as well-controlled or scrutinised as is proposed in the Bill. The sort of activity that I am describing can and has been used to catch murderers, paedophiles and money launderers as well as terrorists. It is a necessary tool of a responsible state.
The issue is whether the Bill allows this information to be obtained in a responsible way by the state. I believe the Government have gone a very long way to ensure that everybody can be confident that in future such material will be obtained by a responsible state and that these clauses are a necessary part of that activity.
Lord Strasburger (LD)
My Lords, I rise to speak to Amendments 100C, 100D and 100E which have been very ably explained by my noble friend Lord Paddick.
When vague and non-specific legislation comes before us, it is perhaps because its authors are unable to be more precise because they have not thought it through or because they choose to not share the details with us. Whichever reason applies in the case of the request filter, there is no doubt that Clauses 64, 65 and 66 are notable more for what they do not say than for what they do. Despite the best efforts of both the Joint Committees on which I had the privilege of sitting—the one on this Bill and the one that examined the draft Communications Data Bill in 2012, in which the request filter first appeared—we are none the wiser about the request filter architecture, how it will work, who will develop it and who will operate it.
We have only to look at an obscure section in an elderly piece of legislation—the Telecommunications Act 1984—to see how overbroad drafting can lead to unintended consequences. Years ago, Section 94 of that Act was used by the Home Office secretly to create a brand new, highly intrusive power—namely, bulk acquisition of communications data—which the Government, to their credit, are now bringing in from the cold in this Bill. For a long time, however, the existence and use of this power carried on without the approval, or even the knowledge, of Parliament. Quite by chance, just a few hours ago, the Investigatory Powers Tribunal ruled that this very powerful secret power of bulk acquisition of communications data, which was created out of that vague section in the Telecommunications Act 1984, has been used illegally by the intelligence and security services for 10 years. We must guard against carelessly passing clauses so vague as to be open to misuse.
Viscount Brookeborough (CB)
My Lords, I hesitate to enter the debate on the Bill at this stage because I have not been involved until now, but as I listened, I compared this in my mind with what occurred in Northern Ireland over 40 years of terrorism. I cannot support this amendment for the very reasons given by the noble Lord, Lord Carlile.
During the Troubles in Northern Ireland, when nothing was on the internet because it did not exist, every bit of information was in hard copy or personal contact. We in the security forces had the right to look at every single bit of information on a person, in their car or indeed in their home if we entered it for a specific reason. That information was held for a very long time. It is amazing how much of it, how many little bits of information, one day tied up with something else and became of extreme interest. Noble Lords who are aware of what happened in Northern Ireland, especially the noble Lord, Lord King, will support the fact that in many cases people’s lives—including in part, I have to say, my own—were protected by snippets of information that at the time were of no particular value and were simply filed away, because they led to associations between people or to intelligence that people were passing to each other. Anyone who has been near to a bomb in Northern Ireland will understand that it is worth while attempting to save people’s lives by the best method.
I have followed the Bill from the point of view of the restrictions on holding information. I do not support the tightness of that; our problems went on for 40 years but the problems that this country is facing at the moment are relatively short-lived. We must create the right security environment by allowing people to get information, which is no longer held in hard copy, on cigarette packets or bits of paper in their homes but is now on the internet. People involved in terrorism or civil crime, including paedophilia, are going to areas either that we cannot get to or where we are wilfully restricting our access to what amounts to very important intelligence.
I apologise again for entering proceedings at this stage, but I could not support such an amendment that would yet again restrict our Security Service and police from gaining and keeping intelligence that one day might be vital to any one of your Lordships. I know these matters seem a long way away when they are outside, in different cities or different parts of the country. If noble Lords lived in Northern Ireland, they would understand how important it is that some sort of connection is kept with leads about what is going on. That information is not in hard copy but up there in the cloud, and while we stay down here we are not going to get it.
Baroness Harding of Winscombe (Con)
My Lords, I oppose the amendment, purely from a position of practicality. I have an interest as chief executive of TalkTalk, one of the communications service providers. If we are to legislate to create a tool to be used, it needs to be effective. My business involves consuming large amounts of data and trying to analyse them, and you cannot do that without a filter. There are other elements of the Bill on which we can debate whether we have the appropriate legal checks and balances, and I defer to the many noble and learned Lords in this House who are debating them, but surely it cannot make sense to withdraw completely the tool that would make those checks and balances effective.
Lord Oates (LD)
My Lords, I support Amendments 100C, 100D and 100E. I am not at all naive about the threats that are faced by this country and the need to provide the tools to the security forces to deal with them. However, as the Independent Reviewer of Terrorism Legislation has made clear, the fact that powers might be useful is not in itself a justification for granting such powers; they must be proportionate, properly scrutinised and properly constrained. I agree with my noble friend Lord Paddick that the phrase “request filter” has a benign ring to it that is perhaps lulling some of us into a false understanding of what it is really about.
As my noble friend recalled, when we discussed this matter previously, the noble and learned Lord, Lord Keen, disputed the idea that the request filter would create a virtual database. He seemed to suggest that it cannot be described as a database simply on the grounds that the data will not be held by the Government. The data accessed by the request filter will be held by commercial entities, not by the Government, that is true, but it will be held on the instruction of the Government in the form that the Government determine, and it will be accessible by agencies of the Government by a means that the Government will determine. I make no claim to be an etymologist, but that seems to me pretty much the definition of a virtual database.
The House may wonder why the Government are going to such an effort to make this distinction between a database and a request filter, when it seems self-evident that they are effectively one and the same. The reason is simple: because they do not want people to realise that they are in the process of legislating into existence the power to create a vast virtual database of information on every person in this country.
As my noble friend mentioned, the Joint Committee on the draft Communications Data Bill stated at paragraph 113 of its report, which dealt with the request filter:
“The difference is that instead of one database there are many and they are privately owned. Although they are privately owned the Government can stipulate what should be held on them, for how long, and in what format it should be supplied. The differences therefore are not as great as the Home Office suggests”.
As my noble friend said, it concluded that,
“the Request Filter can be equated to a federated database”—
a database which will be accessible not only to the security services in the tireless work that they do on our behalf to keep us safe from terrorism, law enforcement authorities in their vital work tackling serious crime, or the police in dealing with crime in general. As my noble friends have said and the Government have confirmed, this vast, federated database will be available to all public authorities to assist in obtaining the communications data that they are permitted to use, subject to individual authorisation.
I do not think that the public have any idea of the sweeping powers that we are contemplating granting to the Secretary of State to establish this vast virtual database. I imagine that they will be horrified when they do, just as they were by proposals of previous Governments to create national databases, before this Government cleverly came up with a new name for it that sounds so eminently and hypnotically reasonable, but is as far from describing what it actually is as it is possible to conceive.
I hope that this House will not allow itself to be misled by the Government’s creative use of the English language, but, rather, aware of the practical reality of what is being proposed, will support the amendments in the names of my noble friends.
Lord Rosser
My Lords, we do not share the major concerns expressed in support of the amendment, in view of the Bill’s provisions. As I understand it, neither did the committees which considered the Bill, including the Joint Scrutiny Committee on the draft Bill. There are also downsides which would arise from the amendment, to which reference has already been made.
In Committee, we asked the Government to clarify that the general provisions in relation to privacy in Clause 2 affected every power in the Bill, in the light of the letter written by the noble Earl, Lord Howe, to me on 14 July stating that the new overarching privacy clause set out the privacy obligations which constrain the use of the powers in the Bill—which therefore must include necessity, proportionality and the protection of privacy. In their response, the Government confirmed that that was the case. For those reasons, we will oppose the amendment.
Earl Howe
My Lords, I feel that I have to begin by saying to the noble Lord, Lord Paddick, that he has got this one wrong—indeed, very wrong. I am grateful to the noble Lord, Lord Carlile, the noble Viscount, Lord Brookeborough, my noble friend Lady Harding and the noble Lord, Lord Rosser, for the contributions that they have made.
The amendments seek to remove Clauses 64, 65 and 66 from the Bill, which provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—colloquially referred to as the “request filter”—and detail the appropriate safeguards and restrictions around its use. Throughout the passage of the Bill we have repeatedly highlighted the many misconceptions and misrepresentations around the filtering arrangements, and we have demonstrated how the provisions in fact provide an important safeguard in the acquisition of communications data. It is therefore perplexing that the noble Lord, Lord Paddick, has given notice that he remains opposed to the clauses providing for the filtering arrangements to stand part of the Bill. It may therefore be helpful if I set out again what the filtering arrangements will actually do and not do.
Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests. In certain circumstances this amounts to more data—sometimes much more data—than are relevant to their investigation, and they will then need to determine which specific pieces of communications data are relevant. Perhaps I could illustrate with an example. The police may need to make a complex query, such as asking multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime, such as armed robbery, at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify all the mobile phones used in those three locations at the relevant times to determine whether a particular phone and a particular individual is linked to the three offences. This means that the public authority may acquire a significant amount of data relating to people who are not of interest but who just happened to be in the location at the time of the robbery.
The significance of the request filter is that, when a police force makes such a request, they will see only the data that they need to. Any irrelevant data about people who are not suspects will be deleted and not made available to the public authority. That is why I maintain that the filter acts as a vital safeguard, protecting privacy by ensuring that the police see only the data they need to. These amendments would remove that important safeguard—so it is perplexing, as I say, that the noble Lord wishes to do this.
To further reassure the House, I remind noble Lords of what the Joint Scrutiny Committee on the draft Bill stated about the filtering arrangements. It stated:
“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.
The Joint Committee believed that the requirement upon law enforcement to state the operational purpose of accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure the appropriate use of the filter.
The noble Lord, Lord Paddick, said that the Bill provided for unfettered access to private and confidential information. But access is not unfettered—and nor does the Bill permit fishing expeditions, as the noble Lord, Lord Carlile, rightly emphasised. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. That request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer of a rank specified by Parliament, who must be independent of the investigation.
I noted with some dismay the aspersions cast by the noble Lord on the likely integrity of those individuals actually retrieving the data—including, to my surprise, the integrity of the police. I am pretty shocked by the language that he used. The noble Lord also described the filter as a “database”. A database has to contain data. The filter will not hold any communications data. Once a request has been processed by the filter, any data—that is to say, all data—will be discarded. I hope that that does clear some of the fog.
The request filter will act as an important safeguard. It will ensure that police officers and others will see only the information they really need to in those cases where it is used. Accordingly, I respectfully request that the noble Lord, Lord Paddick, withdraws his amendment.
Lord Paddick
I thank the Minister for his remarks, and other noble Lords who have contributed. I acknowledge the great experience of my noble friend Lord Carlile of Berriew both as a lawyer and as a former Independent Reviewer of Terrorism Legislation. However, it is clearly untrue for him to say that, in his judgment, excluding the request filter from the Bill would reduce the capacity of the authorities to investigate cases. The request filter does not exist at the moment, so it cannot possibly reduce the capacity. It may restrict the capacity of the agencies in the future, but it will certainly not reduce it, because the authorities do not have a request filter at the moment. The “monster” that I alluded to is nothing other than the mechanism—the request filter—that these clauses and this amendment are all about.
My noble friend described two murder cases where convictions could not have happened were it not for the sort of data that we are talking about here. Those two convictions were obtained in the absence of a request filter, because the filter does not exist. So it is clearly nonsense for my noble friend to say that excluding the request filter from the Bill was likely to have impacted on convictions that relied on something that does not even exist at the moment.
I acknowledge the experience of the noble Viscount, Lord Brookeborough, in Northern Ireland. As the Minister said, this is not a database. It is not intelligence information that is gathered and stored. It is a mechanism—a piece of kit, if you will—that reaches out into databases held by private companies, such as the internet service provider led by the noble Baroness, Lady Harding of Winscombe, retrieves data and brings it back. As the noble Earl said, it is not about a real database but a virtual or federated one. In other words, the tool will effectively act as a database rather than being an actual one. I am sorry that, in the number of times that I have used this expression—at Second Reading, in Committee and now on Report—I have not been able to get my message across about the difference between a virtual database and a real one. But I think that it is time I stopped flogging that horse.
The noble Lord, Lord Rosser, is reassured that Clause 2, the overarching privacy clause, applies to every power in the Bill. This is not a power: it is a piece of kit, a search engine. The Government have said nothing in their response to this amendment to reassure us that Clause 2 applies to this, because it is not actually a power. The Minister used the example which I spoke to, almost exactly, when I moved the amendment. To use his word, it is “perplexing” that the noble Earl did not hear my objections to that as a good example.
The unfettered access that I am talking about is not unfettered access to data by the police and the security services, and I never suggested that it was—but there will be unfettered access by those who operate the request filter because the request filter will have direct access to the databases operated by the communications providers. So I am not saying that there would be unfettered access to data by the police and security services; what I am saying is that government officials, or those acting on behalf of the Secretary of State, would have unfettered access to these databases were the request filter to come into existence. So I, too, am perplexed that the Government have not responded positively to this amendment and I wish to test the opinion of the House.
“Department for Communities in Northern Ireland | Deputy Principal | All | (b)” |
“( ) Nothing in this section prevents a person acting as a single point of contact from also applying for, or being granted, an authorisation or, in the case of a designated senior officer, granting an authorisation.”
“( ) this Part has effect as if the designated senior officer of the supplying authority had the power to grant an authorisation to officers of the subscribing authority, and had other functions in relation to the authorisation, which were the same as (and subject to no greater or lesser restrictions than) the power and other functions which the designated senior officer of the subscribing authority who would otherwise have dealt with the authorisation would have had, and( ) section 72(1) applies to the authorisation as if it were granted by a designated senior officer of the subscribing authority.”
“(c) this Part has effect as if the designated senior officer of force 1 had the power to grant an authorisation to officers of the collaborating police force, and had other functions in relation to the authorisation, which were the same as (and subject to no greater or lesser restrictions than) the power and other functions which the designated senior officer of the collaborating police force who would otherwise have dealt with the authorisation would have had.”
Earl Howe
My Lords in moving this amendment I will speak to the other amendment in this group. They provide for the introduction of judicial approval for data retention notices given under Part 4 of the Bill. This is an important new safeguard. It means that such notices given, authorised or varied by the Secretary of State, including those requiring the retention of internet connection records, will in future also require the approval of a judicial commissioner.
The Secretary of State must already consider whether it is necessary and proportionate to issue a data retention notice to a telecommunications operator. This amendment would mean in future that the decision to give a notice would be reviewed by a Judicial Commissioner, in line with the authorisation procedures for other powers in the Bill. I hope that the House will welcome this additional safeguard and, accordingly, I beg to move.
Baroness Hayter of Kentish Town
My Lords, we take this opportunity to thank the Government for listening to us, to the service providers and, in this case, also to the human rights monitors—everyone is in agreement. We are happy to support the amendments.
(a) ”
(b) the decision to give the notice has been approved by a Judicial Commissioner.”
Baroness Hamwee
“( ) A retention notice may not require a telecommunications operator to retain or disclose third party data unless the operator retains it for its own business purposes.( ) In this section “third party data” means communications data processed by the operator for the purposes of routing communications within an electronic communications network.”
Baroness Hamwee
My Lords, Amendment 117B is grouped with government Amendments 118 and 130. It aims at the same thing, but I think that the Government’s aim is better than ours in Amendment 117B. The amendments are about the retention of third-party data, so in order to move the business on we are very happy to support the government amendments in this group. I beg to move.
Lord Keen of Elie
My Lords, I do not understand why the noble Baroness wishes to insist on Amendment 117B.
Sorry, I am getting a great deal of advice from around the Chamber, and it is all immensely helpful.
Perhaps I may explain the purpose of government Amendments 118 and 130. As I said in Committee, we have been making good progress on drafting a clause that could put into the Bill the Government’s clear commitment that we will not require a telecommunications operator to retain third-party data.
It is important to be clear exactly what we are referring to as third-party data. Where one telecommunications operator is able to see the communications data in relation to applications or services running over its network but where it does not use or retain that data for any purpose, then it is regarded as third-party data. For example, if you use an internet access provider such as a home broadband provider to use the internet to log into a separate email provider in order to send an email, the broadband service might be able to see your access communications data in relation to the email service. If that information was not used or retained for any purpose by the broadband provider, the data would be considered to be third-party data.
I am pleased to say that we have now produced a clause that prohibits the retention of third-party data. We have tested this drafting with operational partners and with those telecommunications operators likely to be affected by the legislation and we are confident that it delivers the desired effect. That being so, the Bill essentially replicates the current position in RIPA, which is that data that already exist and could save a life or convict a criminal and so on can be accessed, but we are not insisting that data should be retained.
In these circumstances and in light of the opening observations by the noble Baroness, I commend government Amendments 118 and 130 in the event that we proceed.
Baroness Hamwee
I am sorry to have confused the noble and learned Lord. I was simply trying to explain that we are seeking to achieve the same thing, but that the Government have done better than we have. I beg leave to withdraw the amendment.
Lord Keen of Elie
“(3A) A retention notice must not require an operator who controls or provides a telecommunication system (“the system operator”) to retain data which—(a) relates to the use of a telecommunications service provided by another telecommunications operator in relation to that system,(b) is (or is capable of being) processed by the system operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the system as a result of the use mentioned in paragraph (a),(c) is not needed by the system operator for the functioning of the system in relation to that communication, and(d) is not retained or used by the system operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.”
Lord Paddick
Lord Paddick
My Lords, the effect of Amendment 118A, tabled in my name and that of my noble friend Lady Hamwee, would be to remove internet connection records from any notice requiring the retention of communications data by telecommunications operators.
It is important to look back over the history of internet connection records. The initial argument put forward by the Government and law enforcement agencies was that, with so many communications now being via the internet rather than via fixed line or cellular communication, it was essential to keep a record of every attempt to access the internet by everyone in the UK in the past 12 months, so that the same data that are currently available from an itemised phone bill—the who called who from where and when—would also be available if someone used the internet to communicate instead. If that is what ICRs were, and if ICRs provided that information, we might be more relaxed about them, but the parallel with itemised phone bills is clearly false. After the Joint Committee’s scrutiny of the Bill, the Government acknowledged that they wanted more than just the itemised phone bill data. They wanted to be able to see, for example, whether a suspected terrorist had accessed a travel agent’s website or a paedophile a particular file-sharing website.
Noble Lords will be relieved to hear that I do not intend to go over every objection to internet connection records—we would be here until the early hours if I did. Let us look just at itemised phone bill data. My internet connection records will show that about 10 different apps on my mobile phone that I can use to communicate with other people, including my Facebook app, my WhatsApp and iMessenger apps—which are end-to-end encrypted messaging apps—my Facebook Messenger app and my Twitter app, are all connected to the internet all the time. There will be no ICR data that tell law enforcement agencies where I was at a particular time, whom I was communicating with or whether I was communicating with anyone at all while these apps were connected to the internet.
If I was communicating with someone, the ICR data would contain no information about when I was communicating. Even if I was a simple soul and communicated using only WhatsApp, law enforcement would not be able to go to WhatsApp and say, “On this day and at this time, he was using WhatsApp. Who was he communicating with?” That is because the app is connected to the internet all the time and they would not be able to narrow it down to a particular date and time from the ICR data. They would have to ask for all my communications data over an extended period—an enormous volume of data that WhatsApp might consider a disproportionate request, save in the most serious cases.
Knowing someone’s internet connection records is just the start of the problems facing law enforcement agencies. I have another app on my phone. It is a virtual private network app. This app allows me to traffic all my connections to the internet through one secure server. If I engage it, my internet connection records will not show anything other than connection to the VPN server. Choose a VPN service provider whose server is in a non-co-operative foreign country and law enforcement will not be able to find out what connections have been made through the VPN server.
My point is that ICRs do not give law enforcement agencies the equivalent of itemised phone bill data. The agencies would have to go to each communications platform operator, most of whom are in the United States of America, and ask them for more information. They might not be inclined to give up those data except in very serious cases. If one simply used a VPN, law enforcement would not know to which operator to go to ask for more data. Even if it did, it would have to ask for vast quantities of data that would be difficult to process—and, in any event, the overseas operator would be likely to say that the request was disproportionate and refuse to hand over the data.
Noble Lords will notice that I keep emphasising law enforcement and serious cases. In cases of serious crime, including child sexual exploitation, GCHQ can assist law enforcement agencies. In a case affecting national security, agents representing MI5 have told me, face to face, that they do not need or want internet connection records; agents representing MI6 have told me face to face that they do not need or want internet connection record; and agents representing GCHQ have told me face to face that they do not need or want internet connection records.
If we strip away criminals who will soon get wise and use VPNs, if we strip away crimes that are not considered by US operators to be serious enough to hand over the data and if we strip away crimes that are so serious that GCHQ’s help can be sought—GCHQ can secure the necessary data without the need to store ICRs—we are left with very little. For that very little gain, everyone in the UK’s web histories will be stored for 12 months at enormous cost, and with enormous potential for intrusion into privacy and enormous risk of vast quantities of sensitive personal information being hacked into by criminals and hostile foreign Governments. The only valid conclusion anyone can come to in such circumstances is that the storage for 12 months of everyone’s ICRs is both unnecessary and disproportionate.
Lord Harris of Haringey (Lab)
My Lords, I am sure that the entire House is grateful to the noble Lord, Lord Paddick, for giving us a comprehensive list of ways in which we can try to keep our communications secret and away from prying eyes. I am sure that every Member of the House is grateful for that tutorial, but the noble Lord does rather elide the question of those people who perhaps have not had the benefit of his tutorial. I realise that the whole world of terrorism and organised crime is listening with intent to every word that he says on these matters, but there will be such. He gave a specific example, saying that communications data in the past would have demonstrated that X had contact at a travel agent. When I book train tickets, I usually do not use WhatsApp or a VPN—I simply go online and connect to the relevant train company. So if somebody wanted to find out whether I had been booking a train ticket, my internet connection record would provide that information. I therefore do not quite understand the argument that, because there are ways that you can avoid the state knowing what you have done if you are really determined, you should therefore prevent it knowing what you have done if you are not really determined.
My understanding is that not all terrorists and not all organised criminals are terribly good with this stuff—that they make mistakes—so the horrifying consequences that the noble Lord describes therefore might not actually occur, and instead, a lot of very nasty people will be caught, because they do not have the noble Lord’s encyclopaedic grasp of ways of keeping communications secret.
Lord Strasburger
Amendment 118A seeks to prevent the creation and collection of internet connection records. My noble friend Lord Paddick has explained why ICRs are of little security value, and that they would be very difficult and expensive to collect and make use of. The only democracy to try was Denmark, which gave up after years of fruitless effort. It tried again at the beginning of this year with a project almost identical to the one planned by the Home Office, but quickly abandoned it when independent auditors confirmed that it would be prohibitively expensive.
I wish to draw the House’s attention to two other serious drawbacks that would arise from creating and storing internet connection records. The first is the serious impact on the privacy of every user of the internet in this country. We must remember that internet connection records do not currently exist, and until quite recently—say, 25 years ago—all the electronic data that would have to be collected together to create ICRs did not exist, either. In those days, our private interactions with those close to us left no trace. A conversation over lunch, a cash purchase at a shop, a visit to a library to do some research, attendance at a political meeting, a romantic assignation—all left no record of having happened. They were ephemeral. What happened between your four walls was between you and your God.
Fast forward to today, and we find that all the interactions I have just mentioned now leave an electronic trail behind them. A combination of credit card records, location services on our phones, our emails and text messages and records of every website we visit will give the whole game away—including the identity of whom we met at our assignation. If internet connection records are created and kept by our service provider, all these electronic trails will be available to hundreds of public authorities, not just the police and security services, on demand and simply by self-authorisation.
The Government have given this data the name “internet connection records”, which is technically accurate, but what they really are is private activity records: a log of everything we do and when and where we do it. The problem is not that the surveillance can occur at all, but that it happens indiscriminately to all of us, all the time. My second topic is the ironic fact that ICRs will actually reduce our security, rather than improve it, because of the virtual certainty of thefts of some of that private and personal data about every internet user in the country. If you do not believe me, consider just a few of the thousands—and I mean thousands—of recent data thefts from high-security establishments. I mentioned in Committee that SWIFT, the fulcrum of the global financial payments system, has had $81 million stolen from it by hackers. Last week, it emerged that it has been penetrated a second time. A gang of five eastern Europeans is believed to be behind the theft of 3 billion sets of customer data worldwide from many of the world’s leading tech companies, including the data of 500 million Yahoo! customers. As I mentioned earlier, powerful hacking tools belonging to the NSA, the American equivalent of GCHQ, suddenly appeared on the internet in August having been stolen from it, and two Israelis and an American stole 100 million people’s records from 12 US financial institutions. Those are just a few examples—as I say, there are many more—of thefts from sites which, dare I say it, were seemingly far more secure than those of UK service providers.
Internet connection records, or private activity records, will be stolen and the consequences will range from embarrassment to blackmail and fraud for the unfortunate victims. In the case of people in positions of responsibility, including government officials, the consequences could be catastrophic. Far from making us safer, ICRs would compromise our security and, as I have explained, seriously intrude on our citizens’ privacy. We should have nothing to do with them.
Baroness Harding of Winscombe
My Lords, I rise to speak against this amendment. As the chief executive of a telecoms company, I clearly cannot profess a lack of understanding of the technology. I am a little confused by noble Lords’ concern that internet connection records can be got round and are not perfect because telephony is exactly the same. If I make a telephone call and am really smart, I know how to make sure that you do not know what number or where in the world I am calling from. Without needing to be that smart, I can buy a temporary SIM card and throw the phone away as soon as I have made the call. Organised crime and nation states have been able to use plenty of ways to obfuscate the existing ability for us to track telephony. That does not mean we think it a bad idea to be able to track people’s telephone calls.
I argue that exactly the same is true of internet connection records and their use by law enforcement agencies. It would not be perfect; no piece of technology ever is. It needs very careful scrutiny, which the Bill has had in both Houses. But I want to live in not just a civilised physical world but a civilised digital world, and when all our law enforcement agencies say that their ability to hunt down criminals is seriously hampered by the world moving to the digital space, we should take that very seriously and make sure that we arm them with the best possible tools. I believe that access to internet connection records is practically possible and desirable to create a civilised digital world.
Viscount Brookeborough
Briefly, this brings up the principle of what society is prepared to sacrifice—in this case, a little privacy—to get what it needs to fight criminals and terrorism. I am sorry to go back to Northern Ireland but everybody was stopped daily and their lives were infringed on the whole time there. But they were happy enough because the fight, which was against terrorism in our case, was succeeding. By the end, 95% of all incidents planned by the IRA never took place because of intelligence activity. We know that it is intrusive to do this but if we had stopped stopping cars, when 99.9% of those cars held the innocent and the unassociated, it would have enabled those we were up against to operate freely across everything. The very fact that people were prepared to sacrifice some of their freedom meant that it was more difficult for those who wanted to kill, maim and commit crimes. If we do not push them out of normal day-to-day activity into the more complicated part, we will never succeed in fighting them.
Lord Oates
My Lords, I will not detain the House too long and certainly do not want to repeat all the eloquent arguments that my noble friend Lord Paddick has outlined on this matter. I want to say two things about the previous two interventions. The utility issue—the fact that people may be prepared to give up their liberties—does not necessarily come into play here. I do not think that the vast majority of people have any idea whatever of what the Government are planning. I do not think they have any idea that regardless of whether they are regarded as innocent, suspect or anything else, every single person’s website visits will be held on databases on the instruction of the Government. Nobody is aware of that. They are not making a decision about whether they are prepared to accept that infringement, and I think they will be horrified when they understand it.
A number of noble Lords have said that the fact that the law can be evaded is not a reason not to have a law. If a law can easily be evaded and that law requires a massive invasion of the privacy of people throughout this country, that has to be weighed in the balance. It has to be taken very seriously.
We have to be clear about what is proposed. The Government intend to take the power to compel the creation of databases of every single website that every single person in this country visits over a 12-month period. That is a huge amount of data, and it puts a vast amount of power in the hands of the Government. More to the point, it is a vast amount of power in the hands of whoever might manage to hack those databases. This is not some vague threat made up or exaggerated by opponents of these ICR powers to make a point. It is a real and present danger and a massive threat to the privacy and security of every single person in this country. We are all aware of the spate of state-sponsored and other hacking that has been taking place in the United States and elsewhere around the world. Every day, systems come under serious attack and none is entirely immune. If the US Pentagon can be hacked, then who on the Government Front Bench can say hand on heart that this vast new store of information that the Government are demanding be created cannot be hacked?
When I talk to people around the country about the powers that the Government are proposing to take in relation to ICRs they are almost universally shocked. They do not have any faith that such data will be held securely, and they cannot understand why the Government would put at risk their privacy and security unless holding such information was critical to the prosecution of the most serious crimes. As my noble friend Lord Paddick has pointed out, the security and intelligence agencies have consistently been clear that they do not need ICRs. There are very simple ways to evade the collection of ICRs, so those committing serious crimes are unlikely to be troubled. The strongest case cited for these powers is in relation to identifying and prosecuting paedophiles, and there is no doubt we should listen and consider this case very carefully because the protection of children from such people must be regarded as an absolute priority for every one of us. However, as my noble friend Lord Paddick has pointed out, in those serious crimes, including child exploitation, GCHQ can assist law enforcement and there is a joint unit for those purposes. Perhaps more to the point, the sort of people involved in the criminal activities we are discussing would easily be able to avoid their ICRs being captured.
The power the Government are claiming is extraordinary. It is a power that none of the other “Five Eyes” countries has. Indeed, to my knowledge, no even nominally democratic Government in the world have it. It is such an extraordinary power that my noble friend Lord Carlile, who is unfortunately no longer in his place and who is no slouch on counter- terrorism measures, wrote an article in the Mail on Sunday on 26 May 2013:
“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every internet user, though we have been accused of that ambition”.
Granting the Government a power to order the retention of the details of every website visited by every person in the country over a 12-month period will give us, at best, only false comfort. It may make some of us feel more secure, but it will not make us more secure. In fact, it will put at risk the security and privacy of every person in this country. I support the amendment in the names of my noble friends.
The Lord Bishop of Chester
My Lords, I was a member of the Joint Committee conducting pre-legislative scrutiny of the Bill, along with the noble Lord, Lord Strasburger—I am not sure whether anyone else in the Chamber was. I remember a discussion which was genuinely open and uncertain about the practicality of this above all. The issue of privacy has been raised very powerfully by the noble Lord, Lord Oates, and others from the Liberal Democrat Benches. We thought at the end of the day that the whole Bill was about reaching a balance, with a degree of compromise over issues of privacy alongside the really quite robust safeguards which are in the Bill, such as the role of the judicial commissioners, as all set out in Clause 86. Our real issue was over practicality and cost. When the Minister comes to respond, it would be helpful if we could have a bit more guidance as to what this is going to cost. The cost will not fall on the companies; it will fall upon the Government, who will have to fund it.
However, we were persuaded that under Clause 84, the retention notice may be more specific than has been suggested in the speech from the Liberal Democrat Benches. It is not necessarily every connection to every website: the provision could be targeted to particular websites, for example, which is all set out in Clause 84. We should also emphasise that these records would not be of the content of what was happening: it would be where you had made contact, not the content of the connection as such. That is an important factor which has not been mentioned in the contributions.
That said, a representative from Denmark came and explained to us why the Danes had given up on this, simply on the grounds of cost and practicality. It is the practicalities that I would like to hear about most from the Minister when he speaks, alongside of course acknowledgement of the points that have been made by others in the debate.
Baroness Jones of Moulsecoomb
My Lords, I did not intend to speak on this amendment, which I strongly support, so I will be brief. Even I understand the need to balance civil liberties and national security, but comparing this with stopping a few cars simply does not hold water and is not a comparison that we can make—and, personally, I am totally in favour of stopping cars, so that is not an issue.
It is almost as if the Government went to the intelligence and security services and said, “What do you want? What can you imagine wanting to keep us safe?”, and they came up with a huge list. It is like asking children what they want for Christmas: they want a huge list of things and it is not always good to give them everything they want. In this instance, it is certainly not good to give the intelligence services what they want. Indeed, they do not even want some of what the Government are offering them, so the Government have actually gone one step further and offered them more, which to me is totally counterintuitive.
There is also the issue of practicality. When you have this much information coming through, it is incredibly difficult to pick out the vital points and the important things. This could be counterproductive and make us less safe as a nation than we are already. I feel very strongly about this amendment and deeply regret that there is not more support in the House.
Lord Rosser
The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.
Lord Keen of Elie
My Lords, the amendment would prevent the Government being able to require telecommunications operators to retain internet connection records. The noble Lord, Lord Paddick, tabled exactly the same amendment in Committee, and he will not be surprised to know that the Government still cannot support such an amendment. As the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harding, observed, these provisions may not give rise to a perfect system of record recovery but it is preferable to a dark hall where criminals move unseen and with impunity.
The noble Lord, Lord Paddick, talks of observations from the Security Service and the Secret Intelligence Service, but be it noted that it is not for them that these records are so essential; it is for the police forces and the enforcement agencies in respect of crime. I have spoken at length to the National Crime Agency, which has underlined to me the critical nature of these records now that telecommunications data are so often routed through the internet, not by means of normal telephony.
Earlier today this House recognised the importance of the use of internet connection records, subject to strict safeguards, as noted by the noble Lord, Lord Rosser. I do not think this House will want to prevent internet connection records being retained with the result that they are not available for any form of criminal investigation. Indeed, we have just discussed the government amendment to require judicial approval before a data retention notice can be given, which, as I said at the time, puts in place a significant new safeguard before a telecommunications operator can be required to retain the data.
There has been considerable debate on this topic, not just today but as the Bill has progressed through Parliament. However, in relation to this amendment, I should perhaps reiterate why internet connection records are so essential for law enforcement. As communications increasingly take place via the internet, information that used to be routinely available to law enforcement from telephone-based communications data is increasingly unavailable—for example, the identity of an individual suspected of sharing indecent images, or people with whom a missing person was last in contact. Internet connection records are essential because they will ensure that the type of communications data that were previously available to law enforcement will remain available in future, not perfectly but generally. It will help to ensure that terrorists and criminals cannot evade detection simply because they choose to communicate online.
The noble Lord, Lord Paddick, observed that there may be applications or social media apps on a device that maintain a persistent connection to a service. That is true, but even in such cases the relevant ICR will signpost the service access by the device, enabling a public authority to make further inquiries with the service provider, which is identified through the ICR. ICRs will allow law enforcement to approach online service providers to acquire communications data where it is known that a specific device has accessed their service. So it is not the case that simply because you have open or permanent connections, the use of ICRs is rendered useless; that is simply not accepted.
The alternatives available to the security and intelligence services are not available to the police, and certainly cannot be adduced in a court of law. The police can acquire communications data only on a case-by-case basis where necessary and proportionate, and where they have made strong operational cases as to why they need to retain these records. Equally, the intelligence agencies may acquire data only for their own statutory purposes, which are far narrower than the criminal types investigated by the police. It is also the case, as I mentioned before, that intercept material from the agencies may not be used as evidence in court, a position that has been upheld by numerous independent inquiries over the years, most recently by a panel of the Privy Council in 2014.
Giving evidence to the Public Bill Committee, the noble Lord, Lord Reid, and Charles Clarke, previous Home Secretaries, were asked whether ICRs were a key part of updating legislation to the current world, and they both definitely agreed. Indeed, one could go further. The noble Lord, Lord Paddick, alluded to the observations of the Joint Committee on the draft Bill. Let us look at its conclusion:
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.
The Government recognise the sensitive nature of internet connection records, which is exactly why we had our earlier debate concerning the safeguards that must surround their recovery. The point has already been made that those records will not give access to the content, it is the record of connection that will be recovered.
I appreciate that the noble Lord, Lord Paddick, still has concerns about internet connection records, and I fear that nothing I say will convince him otherwise, but I again reassure him that we have all the right safeguards in place. Data can be retained only when necessary and proportionate and following authorisation and approval by the Secretary of State and a judicial commissioner. We have mechanisms in place to ensure that data are held securely, including audit by the Information Commissioner. Once the data are retained, they can be accessed only on a case-by-case basis, and only when judged necessary and proportionate by a senior officer at a rank specified by Parliament who is independent of any investigation being carried out. Strong judicial oversight will be provided by the Investigatory Powers Commissioner and, thanks to the changes made by this House, internet connection records cannot be acquired for minor offences, an amendment we discussed earlier.
In summary, internet connection records are a vital power. As to their cost, I believe that the figure given at a previous stage was £174 million over a period of 10 years. That is a not inconsiderable sum, but a manageable figure in the context of what we face with police powers. Accordingly, I invite the noble Lord to withdraw the amendment.
Lord Paddick
My Lords, I am grateful to noble Lords who have contributed to this debate. Leaving his heavy sarcasm to one side, I must tell the noble Lord, Lord Harris of Haringey, that it is very easy to find out how to evade these measures. A simple Google search will tell a seven year-old all about VPNs; I am not giving away any trade secrets. He talked about terrorists and nasty people. If those nasty people are involved in serious crime or terrorism, the police and the National Crime Agency can enlist the help of GCHQ. Therefore, internet connection records will not be required.
I say to the noble Baroness, Lady Harding of Winscombe, that, yes, it is not a perfect system, but she is wrong to say that the security agencies say that it is people moving to communication via the internet that is making us less secure. Encryption is the real problem making us less secure. Why, otherwise, would GCHQ and the other security agencies say that they do not need internet connection records?
The noble Viscount, Lord Brookeborough, mentioned the vital question: is it reasonable, is it proportionate and where should the balance lie? However, as the right reverend Prelate the Bishop of Chester pointed out, there are other real questions which the noble and learned Lord failed to address about whether ICRs would in practice deliver what the law enforcement agencies want. My noble friend Lord Oates re-emphasised that this is a massive intrusion into privacy; that is why we oppose it. As he pointed out, in a child exploitation case, there is a joint operations unit between GCHQ and the National Crime Agency to deal with the issue.
Where I part company with the right reverend Prelate is on the suggestion that ICRs could be more targeted. There is nothing in the Bill to suggest that they will. On the content of websites, if someone accesses a domestic violence, gender reassignment or marriage guidance website, it is immediately apparent what they are looking into and it is a massive intrusion into privacy even if the record is only of the website they are looking at.
The noble and learned Lord has spoken to the National Crime Agency at length. I have been twice to the National Crime Agency, so I have spoken to it at length twice, and I still, as a former senior police officer, failed to be convinced.
I spent 30 years in the Metropolitan Police Service and ended up as a senior officer at Scotland Yard. If I thought that the balance here was right between invasion of privacy and the benefits that accrue to law enforcement, I would not be expressing these views.
I am a lousy politician. I cannot stand here and say things that I do not believe just because they are my party’s policy. I am opposing this because I genuinely oppose the disproportionate invasion of privacy that ICRs represent. That is why I wish to test the opinion of the House.
“Approval of retention notices by Judicial Commissioners
(1) In deciding whether to approve a decision to give a retention notice, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to give a retention notice, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to give a retention notice, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to give the notice.”
“(10A) But the Secretary of State may vary the notice, or give a notice under subsection (10)(b) confirming its effect, only if the Secretary of State’s decision to do so has been approved by the Investigatory Powers Commissioner.”
“Approval of retention notices following review under section 86
(1) In deciding whether to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice as varied or confirmed to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Investigatory Powers Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Investigatory Powers Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.”
(a) ”
(b) subject to subsection (5A), the decision to vary the notice has been approved by a Judicial Commissioner.”
“(5A) Subsection (4)(b) does not apply to a variation to which section 86(10A) applies.”
“(8A) Section (Approval of retention notices by Judicial Commissioners) applies in relation to a decision to vary to which subsection (4)(b) above applies as it applies in relation to a decision to give a retention notice (and, accordingly, the reference in subsection (1) of that section to the requirement to be imposed by the notice is to be read as a reference to the requirement to be imposed by the variation).”
“(9A) Section (Approval of retention notices following review under section 86) applies in relation to a decision under section 86(10) to vary or confirm a variation as it applies in relation to a decision to vary or confirm a retention notice (and, accordingly, the reference in subsection (1) of that section to the requirement to be imposed by the notice as varied or confirmed is to be read as a reference to the requirement to be imposed by the variation as varied or confirmed).”
“(de) for section 83(3A) there were substituted—“(3A) A retention notice must not require an operator who provides a postal service (“the network operator”) to retain data which—(a) relates to the use of a postal service provided by another postal operator in relation to the postal service of the network operator,(b) is (or is capable of being) processed by the network operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the postal service of the network operator as a result of the use mentioned in paragraph (a),(c) is not needed by the network operator for the functioning of the network operator’s postal service in relation to that communication, and(d) is not retained or used by the network operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.””
Investigatory Powers Bill
Monday 17th October 2016
(8 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Paddick
“( ) There shall be a body corporate known as the Investigatory Powers Commission comprising—(a) the Investigatory Powers Commissioner;(b) Judicial Commissioners; and(c) staff to support the Commissioners.”
Lord Paddick (LD)
My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.
At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.
The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:
“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.
I shall expand on what IOCCO means by that.
First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.
The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:
“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "
The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.
The IOCCO says:
“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.
It goes on to say:
“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.
This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:
“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.
The amendment seeks to implement that recommendation. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.
It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Amendment 131A seeks to provide in the Bill for an investigatory powers commission in addition to a commissioner. I listened with care to the noble Lord, Lord Paddick, and I understand how strongly he feels about this issue. The Government have been clear throughout the passage of the Bill that the Investigatory Powers Commissioner will lead a powerful new body—the noble Lord and I are, I think, in agreement on that principle. However, the Government have been equally clear that there is no need to create that body in statute. Our principal reason for adhering to that view is that doing so would not confer any new powers, duties or responsibilities on those working for the commissioner, nor would it affect their ability to audit, inspect and oversee public authorities.
I am the first to recognise the importance of public perception. However, as to whether it would benefit public perception to create a commission, I cannot see what advantages an anonymous quango holds over a senior, independent judge. The oversight and authorisation of investigatory powers are vital tasks that need to be performed and need to be performed well. Therefore, in my submission, it is right that an identifiable individual is ultimately responsible for them.
It is the difference between having a person with a public face and a body that risks being seen by the public as faceless. Since the oversight powers and duties are ultimately placed on the Investigatory Powers Commissioner, we logically expect that commissioner to be the public face of the body. It is the commissioner who will be called on to lead the public debate on these issues and to give his or her expert and considered legal view on the matters in the Bill. If, for example, someone receives a notification of an error under Clause 209, or if a report is made under Clause 212, it is better that such communications should come from a senior, named judicial figure rather than a faceless organisation.
Of course, it is necessarily the case that the commissioner will rely on the work of an extensive staff of expert inspectors and advisers. Again, though, I argue that that does not necessitate the creation of a commission in statute. When an inspector walks into a public authority, the fact that they are an employee of an investigatory powers commission would not give them any greater powers than if they are a representative of the Investigatory Powers Commissioner. I agree with one element of what the noble Lord, Lord Paddick, said: it is right that, in such circumstances, those employees should wield appropriate authority. The Government have listened to concerns expressed on this point and tabled amendments, which we will come to later, to make clear that the commissioners can delegate powers under the Bill to their staff. That will make absolutely clear that when the experts and inspectors employed by the commissioner go about their work, they do so with the full force of the commissioner behind them.
Moreover, creating a new body in statute would require the establishment of a board to run that body, complete with at least three non-executive directors. I was grateful to the noble Baroness, Lady Hayter, for her remarks on this point. In the eyes of many, this would muddy the waters of accountability and introduce considerable new bureaucracy into the work of the commissioner. It is much better that the commissioner’s resources and attention should be focused on overseeing the work of public authorities and providing public assurance, rather than on servicing a burgeoning bureaucracy.
Lord Paddick
Can the Minister reassure me that the circumstances that the Intelligence Services Commissioner found himself in—that is, with one of his investigators effectively being excluded when he was involved in investigating what the intelligence services knew prior to the murder of Fusilier Lee Rigby —could not happen in the absence of a body corporate being set up, as this amendment suggests? There are concerns that people in the security services might not acknowledge the authority of the inspectors if it is not the case.
Earl Howe
I fully believe that the amendments we have tabled will give inspectors the authority that is equivalent to that of a judicial commissioner. Although I was not aware of the case that the noble Lord cites, I think the government amendments will put the situation beyond doubt, if ever there was any. I do not believe that the problem the noble Lord refers to has ever impacted more widely on the ability of inspectors to do the job that is required of them; I like to hope that that was a one-off problem. However, with the benefit of the government amendments, it simply should not be an issue.
I hope I have reassured the noble Lord. Certainly, we cannot overlook the point that the creation of a new body would come at significant financial cost that would be of no gain in terms of public reassurance or effective oversight. As I have argued, it might risk making the oversight regime less clear. For a bunch of reasons, I hope the noble Lord will feel comfortable in reconsidering his amendment.
Lord Paddick
I am very grateful to the Minister. I am not sure that he is entirely reassured that the government amendments will deal with this issue, but I accept that that is because he did not have sight of my example prior to the debate. I regret not giving him notice that I would be bringing it up. However, given all the circumstances, I beg leave to withdraw the amendment.
Earl Howe
My Lords, I will speak to Amendment 132 and the others in the group. The government amendments in this group address the fact that the Northern Ireland Assembly has not provided legislative consent for this Bill. Only a small number of provisions in the Bill engage devolved responsibilities in Northern Ireland. These relate to oversight and to the proposal that the role of the Investigatory Powers Commissioner for Northern Ireland, who is responsible for overseeing the exercise of devolved powers, should be subsumed into the Investigatory Powers Commissioner that we are creating under the Bill.
In the absence of legislative consent, the existing office of the Investigatory Powers Commissioner for Northern Ireland will not be abolished. Consequently, the Bill need no longer provide for the First Minister and Deputy First Minister to be consulted on the appointment of the IPC. Similarly, the Prime Minister will no longer be under a statutory duty to send them a copy of the Investigatory Powers Commissioner’s annual report.
Additionally, appeals arising from the Investigatory Powers Tribunal under Clause 220 will no longer be heard by the Court of Appeal in Northern Ireland. It will be for the Investigatory Powers Tribunal to decide whether the Court of Appeal in England and Wales or the Court of Session in Scotland should hear the appeal instead. Although this is obviously not the most desirable appeal route for individuals from Northern Ireland, our hands are tied by lack of legislative consent from the Northern Ireland Executive.
Included in this group of government amendments are regulation-making powers allowing the Secretary of State, with the consent of the Northern Ireland Assembly, to reverse these amendments. Therefore, if legislative consent were given at some point in the future, the IPC could reasonably quickly take on the functions of the Investigatory Powers Commissioner for Northern Ireland and appeals could be allowed to go to the Court of Appeal in Northern Ireland. It is our hope that both these powers can be used in the near future. Accordingly, I hope noble Lords will support these amendments. I beg to move.
Lord Rosser (Lab)
My Lords, I want to make reference to the amendment that we have in this group. Clause 205 provides for the appointment of the Investigatory Powers Commissioner and judicial commissioners.
As currently drafted, Clause 205(5) requires the Prime Minister to consult Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland about the appointment of these commissioners. However, there appears to be currently no duty to consult Welsh Ministers about these appointments, with the result that Wales does not feel that it is being treated equally with the other devolved Administrations in this respect.
Under the Wales Bill before the House, Welsh devolution will take a constitutional form that is much closer to that for Scotland and Northern Ireland. The First Minister of Wales considers that the mutual respect between Administrations means that drawing unnecessary distinctions in legislation between devolved Administrations should be avoided unless strictly necessary. He regards the provision in this Bill—the Investigatory Powers Bill—as at the very least constitutionally discourteous to Wales. In speaking to this amendment, I invite the Government to take the necessary steps in relation to consultation under Clause 205 to address the concern raised by the First Minister on which I have just sought to reflect.
Lord Murphy of Torfaen (Lab)
My Lords, I add my voice to what my noble friend just said. Initially, in the list of government amendments the Minister seemed to be saying that it was no longer a requirement for the First Minister and Deputy First Minister in Northern Ireland to be consulted on the appointments of the IPC and the judicial commissioners. That is a retrograde step and I hope that the Government will rethink it. I will explain why in relation to my noble friend’s amendment with regard to the First Minister of Wales.
When the Joint Committee considered this part of the Bill, it added its own recommendations that when the Prime Minister looked at the appointment of the IPC and the judicial commissioners, he or she should consult the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland. Both jurisdictions of course are different from England, particularly in Scotland, and it seemed the right thing to do. There was unanimity among members of the Joint Committee on making that recommendation.
Since the Joint Committee met, as my noble friend said, a new Bill has been introduced to this House, the Wales Bill, that will considerably alter the constitutional relationship between Wales and the United Kingdom. For example, it will confer reserve powers on the Welsh Assembly, much of criminal law will be devolved, Wales will be a distinct jurisdiction and there is the possibility in years to come that even justice might be devolved to the Welsh Assembly. It is not at the moment, but certainly the Assembly is arguing that there may be a case in the future for that to happen.
This afternoon, I met with the First Minister for Wales on this very issue. As my noble friend said, the Welsh Government and the Welsh Assembly are very concerned that Wales should be part of the consultation process. No one is arguing that the First Minister of Wales, the First and Deputy First Ministers in Northern Ireland or the First Minister of Scotland should make the appointments: it is a question of courteous consultation. I speak as a former Welsh and Northern Ireland Secretary in saying that devolution has matured over the last dozen years. It is important to respect that maturity and respect the constitutional relationships. On a simple matter of consultation, the Government should rethink the position of the First and Deputy First Ministers of Northern Ireland in this respect and should add the Welsh First Minister as a consultee in this important process. I support the amendment spoken to by my noble friend.
Earl Howe
My Lords, the Investigatory Powers Commissioner will be taking on the responsibilities of the three existing statutory commissioners in this area. I contend that Amendment 132A is unnecessary and indeed inappropriate because it would create an inconsistency across the Bill.
The appointment of commissioners to one of those existing bodies—the Office of Surveillance Commissioners —is currently a matter for the Prime Minister, following consultation with Scottish Ministers. Scottish Ministers also have the power to appoint surveillance commissioners for the purpose of overseeing the exercise of powers under the Regulation of Investigatory Powers (Scotland) Act 2000, or RIPSA.
Under the Bill, the IPC will take on responsibility for overseeing the exercise of powers under RIPSA. As a consequence, the Bill will remove the power of Scottish Ministers to appoint surveillance commissioners. To be consistent with the current position, the Bill therefore requires that Scottish Ministers must be consulted by the Prime Minister prior to the appointment of the IPC or a judicial commissioner. Similarly, the Bill currently requires the Prime Minister to consult the First Minister and Deputy First Minister of Northern Ireland on the appointment of a commissioner. This again reflects the fact that Northern Irish Ministers currently have a role in the appointment of the Investigatory Powers Commissioner for Northern Ireland, which the Bill had originally proposed to subsume into the office of the IPC.
In the event, as I have just said, the Bill has not received legislative consent from the Northern Ireland Assembly. Consequently, the amendments that I have already spoken to in this group would remove the requirement for consultation with Northern Irish Ministers. The noble Lord, Lord Murphy, said that that was a retrograde step, but without legislative consent for the Bill from the Northern Ireland Assembly, the Government have no alternative. In contrast, Welsh Ministers currently have no statutory role in the appointment of the existing commissioners. As the Bill will not affect the competence of Welsh Ministers, I do not consider it necessary to introduce a new right of consultation. Indeed, doing so would create an inconsistency between the treatment of Welsh Ministers and their counterparts in Northern Ireland.
The appointment of judicial commissioners is an important matter, which is why the Government have strengthened the Bill by requiring that appointments must be on the recommendation of the Lord Chief Justice of England and Wales, and that of his devolved counterparts. So Welsh interests will undoubtedly be represented by the Lord Chief Justice of England and Wales. Indeed, I note that the current Lord Chief Justice was in fact born in Wales. I do not consider that further changes to this process are necessary, particularly when they would serve to create inconsistencies within the Bill, as I have explained. On that basis, I hope that the noble Lord will agree not to press his amendment.
Lord Rosser
I thank the Minister for his response. The spirit of the amendment, frankly, is that in the light of the thrust of the Wales Bill the Government ought to be prepared to consider making the change sought in the amendment, which after all is about consultation. However, I note the response that has been received, which clearly indicates that the Government are not prepared to go down that road. I am sure that the First Minister will read the Government’s response carefully even though it will probably be without any enthusiasm.
Lord Keen of Elie
“(8A) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making a recommendation under subsection (4)(e) or making an appointment under section (Members of the Panel)(1).(8B) The delegation under subsection (8) to any extent of functions by the Investigatory Powers Commissioner does not prevent the exercise of the functions to that extent by that Commissioner.(8C) Any function exercisable by a Judicial Commissioner or any description of Judicial Commissioners is exercisable by any of the Judicial Commissioners or (as the case may be) any of the Judicial Commissioners of that description.(8D) Subsection (8C) does not apply to—(a) any function conferred on the Investigatory Powers Commissioner by name (except so far as its exercise by any of the Judicial Commissioners or any description of Judicial Commissioners is permitted by a delegation under subsection (8)), or(b) any function conferred on, or delegated under subsection (8) to, any other particular named Judicial Commissioner.”
Lord Keen of Elie
My Lords, this group contains a variety of government amendments relating to oversight arrangements.
Amendments 133 and 149 clarify the delegation of functions by the Investigatory Powers Commissioner or judicial commissioners. They make clear that certain judicial functions of the IPC or judicial commissioners cannot of course be delegated to staff. The amendments also make clear that, where the Bill requires a judicial commissioner to undertake a task, any of the judicial commissioners can perform that duty. However, the IPC can still delegate a function or functions to an individual judicial commissioner in order to create a de facto deputy, should he wish to do so. Delegation of certain functions is sensible and allows for a flexible and efficient working environment. Of course, it would be inappropriate if the IPC could delegate to a judicial commissioner the ability to recommend individuals to be appointed as judicial commissioners and so this function is reserved to the IPC.
Amendment 149 puts beyond any doubt that the inspectors and expert advisers who work for the Investigatory Powers Commissioner or a judicial commissioner will be working with their full delegated authority. This responds to concerns raised by the noble Baroness, Lady Hamwee, in Committee. We have been clear that the Investigatory Powers Commissioner will lead a powerful new oversight body which will rely on the work of inspectors and technical experts alongside the commissioners themselves. Those working under the authority of the commissioner will have the same right to access and interrogate information that the commissioners themselves would have. This amendment puts that beyond doubt. It makes it clear that commissioners can, formally and in accordance with statute, delegate some of their functions to the staff working for them.
However, it is right that not all functions should be capable of delegation. There are some activities and decisions, such as decisions to approve the use of powers, that should rightly be undertaken by judges. Therefore, this amendment also prevents those types of activities and decisions from being delegated to members of staff. These amendments strike the right balance between allowing members of staff to claim the full authority of the commissioner while reserving key judicial functions to those who are appropriately qualified to undertake them. I hope that that brings some satisfaction to the noble Lord, Lord Paddick, who was concerned to anticipate whether these amendments would go as far as he hoped; I believe that they do.
Amendment 135 is intended to provide further clarity about when a commissioner does not need to consider the duties set out in Clause 207(6) and (7). I hope that the House will agree that while the Investigatory Powers Commissioner and the judicial commissioners who will be working for him or her will be performing vital functions, it is important that the actual performance of those functions does not damage the public interest. Subsections (6) and (7) set out a number of duties on the commissioner: for example, that they should not act in a way that in their own opinion is prejudicial to national security, nor should they act in a way that they consider would compromise the safety of those involved in a security operation.
When the Joint Committee on the Draft Investigatory Powers Bill considered the first incarnation of this clause, it expressed concern that the duty placed on the commissioners as set out in these subsections was too broad. The Government then carefully considered this clause and agreed that there should be occasions on which a commissioner was not caught by these additional duties. For example, we put it beyond doubt that a commissioner could refuse to approve the decision to issue a warrant without worrying that they were breaching their duties in relation to national security. This amendment goes further still along that same path. It increases the list of circumstances in which a judicial commissioner will not be subject to the duty contained in subsections (6) and (7). The amendment expands the list to include all circumstances in which a judicial commissioner could be said to be exercising a “judicial function” or taking a judicial decision. I hope that this provides the House with further reassurance that we do not intend subsections (6) and (7) to be unduly limiting upon the important work of the commissioners.
Clause 223 provides for membership of the Technical Advisory Board, a non-departmental public body that advises the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications operator for review. Membership of the board must include a balanced representation of those on whom obligations may be imposed by virtue of notices and of those persons entitled to apply for warrants or authorisations under the Bill. At present, subsection (2)(a) of this clause requires that the membership of the board must include persons on whom obligations could be imposed by virtue of a data retention notice or technical capability notice—namely, telecommunications operators. Government Amendment 177 makes a minor change to this provision to add persons on whom obligations could be imposed by a national security notice. The amendment will not change the scope of the persons who must be represented on the board; indeed, a national security notice may only be given to a telecommunications operator. However, this minor change will make the meaning of the provision more clear.
Amendment 136 is a minor amendment to Clause 207, clarifying the policy intention that the Investigatory Powers Commissioner should be able to review the decisions of other judicial commissioners should this be necessary.
Amendments 137, 263 and 274 move the definition of a “statutory function” to Clause 239 alongside other definitions.
I turn now to Amendment 146. In Committee, the noble Baroness, Lady Hamwee, sought further clarity as to precisely who is covered by the definition of a “member” of a public authority. Having reflected on the matter, I can see that perhaps this definition is not as clear as it could be. Therefore, the Government have introduced this amendment to be clear that everyone who works for a public authority or who has worked for a public authority in the past will have to provide the IPC with all necessary assistance. I hope that that gives the House reassurance that the IPC will be able to hold those public authorities properly and clearly to account.
Amendment 147 is intended to put beyond doubt the fact that the Investigatory Powers Commissioner will have access to advisers, be they legal, technical or of any other nature, that the commissioner feels is necessary to undertake their statutory functions. This amendment provides that the Secretary of State, after discussion with the IPC, must provide the commissioner with services as well as with staff, accommodation, equipment and facilities. I would like to be clear, though, that the commissioner will be entirely free to choose their own advisers and that the Secretary of State will merely supply the resources to pay for those advisers. This will allow the commissioner flexibility to “buy in” whatever advice they need at whatever time.
Amendments 154 to 156 are technical amendments providing additional certainty around the definition of the chief and other surveillance commissioners who are being abolished by the Bill and replaced by the Investigatory Powers Commissioner.
Clause 221 already makes a number of amendments to Sections 65, 67 and 68 of RIPA in relation to the functions of the Investigatory Powers Tribunal. Amendments 163 to 175 are further technical amendments simply updating the relevant provisions of RIPA to ensure that it is clear that the Investigatory Powers Tribunal has the jurisdiction to investigate any claims or complaints relating to the provisions of the Investigatory Powers Bill. I beg to move.
Baroness Hamwee
My Lords, we welcome the amendments in this group. The provisions on delegation are indeed extremely helpful, as we were concerned about the chain of command and chain of responsibilities. I am glad to see the little amendment about being a “member” of a local authority—or HMRC, which I think was the other example I used. I had thought I was maybe going a bit too far in raising that point, but I am glad that I did. I am also glad to see the insertion of the reference to services for the IPC, which we were also concerned about. Having said that, we are happy with these amendments.
Baroness Hamwee
“( ) The Investigatory Powers Commissioner may publish material expressing views as to or recording legal interpretations of the provisions of this Act.”
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I also have Amendments 178A, 178B and 178C in this group.
We mentioned in Committee how inextricably intertwined are technical and legal matters in this area. I doubt that either Minister would disagree with that, having lived with this Bill as they have. Whether and how the Act will apply will be a matter of legal interpretation in the context of the technology that we have at the time. Our Amendment 134A would give the Investigatory Powers Commissioner power to publish material regarding legal interpretations. It is clear that he would keep the interpretations under review, so this amendment is simply a matter of having the power to publish them.
We welcome government Amendment 178 and its consequential amendments providing for a Technology Advisory Panel. We have three minor amendments seeking either clarification or adjustment. Subsection (1)(a) of the new clause provides for the panel to give advice on,
“the impact of changing technology on the exercise of investigatory powers”.
We would insert there a reference to the safeguards on the exercise of powers. That may be implicit, because the exercise of powers is to be subject to safeguards, but we think it should be explicit. After all, safeguards have been very much a feature of debate on the Bill in both Houses, and the Bill has changed quite a lot in spelling out what safeguards there are.
Similarly, Amendment 178B would insert advice on the interpretation of the law in the light of technological advances and necessary amendments to legislation. It is, if you like, a first cousin to Amendment 134A.
On Amendment 178C, given that the Investigatory Powers Commissioner and Ministers will be required to consider the privacy implications when exercising powers relating to new technology, it would be helpful for the Technology Advisory Panel to be required to have regard to those same matters—that is, those matters set out in the privacy clause, Clause 2. That would be not only helpful but appropriate. After all, as an advisory panel, it must have regard to how those exercising the powers would be constrained in exercising them. I beg to move.
Lord Rosser
I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.
Lord Keen of Elie
I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.
The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,
“have a clear operational purpose”,
and,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that, where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.
The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
Mr Anderson’s report included a single recommendation, which was:
“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—
that is, the Investigatory Powers Commissioner—
“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.
Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.
The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.
While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.
To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.
We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.
I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.
The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,
“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.
This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,
“the technological expertise of the TAP should not be unduly diluted”.
I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.
This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,
“restores the rule of law and sets an international benchmark for candour”,
but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.
Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,
“the impact of changing technology on the exercise of investigatory powers”,
already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.
I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, with the leave of the House, I recognise that this is Report stage. I was aware, of course, that the panel will not be a public authority, and that is why I framed Amendment 178C as I did: the Technology Advisory Panel would need to,
“have regard to the matters”,
in Clause 2, rather than be bound by them. I suggested the amendment because subsection (1)(b) of government Amendment 178 talks about, “minimising interference with privacy”, and that seemed to me not nearly as strong as the privacy clause, Clause 2, which we took to bits but welcomed earlier in the passage of the Bill. I beg leave to withdraw Amendment 134A.
(a) deciding—(i) whether to serve, vary or cancel a monetary penalty notice under section 7 or paragraph 16 of Schedule 1, a notice of intent under paragraph 4 of that Schedule or an information notice under Part 2 of that Schedule, or(ii) the contents of any such notice,(b) deciding whether to approve the issue, modification or renewal of a warrant,(c) deciding whether to direct the destruction of material or how otherwise to deal with the situation where—(i) a warrant issued, or modification made, for what was considered to be an urgent need is not approved, or(ii) an item subject to legal privilege is retained, following its examination, for purposes other than the destruction of the item,(d) deciding whether to—(i) approve the grant, modification or renewal of an authorisation, or(ii) quash or cancel an authorisation or renewal, (e) deciding whether to approve—(i) the giving or varying of a retention notice under Part 4 or a notice under section 228 or 229, or(ii) the giving of a notice under section 86(10)(b) or 233(9)(b),(f) participating in a review under section 86 or 233,(g) deciding whether to approve an authorisation under section 200(3)(b),(h) deciding whether to give approval under section (Additional safeguards for items subject to legal privilege: examination)(4),(i) deciding whether to approve the giving or varying of a direction under section 203(3),(j) making a decision under section 209(1),(k) deciding whether to order the destruction of records under section 103 of the Police Act 1997, section 37 of the Regulation of Investigatory Powers Act 2000 or section 15 of the Regulation of Investigatory Powers (Scotland) Act 2000,(l) deciding whether to make an order under section 103(6) of the Police Act 1997 (order enabling the taking of action to retrieve anything left on property in pursuance of an authorisation),(m) deciding—(i) an appeal against, or a review of, a decision by another Judicial Commissioner, and(ii) any action to take as a result.”
Lord Paddick
“Notification by the Investigatory Powers Commissioner
(1) The Investigatory Powers Commissioner shall notify the subject of a warrant (“P”) which is—(a) a targeted interception warrant issued under Part 2,(b) a targeted examination warrant issued under Part 2,(c) a targeted equipment interference warrant issued under Part 5, or(d) a targeted examination warrant issued under Part 5,that P has been so subject, in accordance with this section.(2) Notification shall not be given if—(a) P is suspected of being involved in terrorism-related or other criminal activity,(b) it might prejudice any continuing or anticipated investigation concerning P or any other person, or(c) the Investigatory Powers Commissioner determines that it is in the interests of national security or the public interest in preventing or detecting serious crime that it is not given;and in any event notification may be given only if the investigation to which the warrant relates has concluded and there is no suspicion that P is engaged in any unlawful activity.(3) The notification—(a) shall inform P of the provisions for the authorisation or warrant, but(b) shall include no details of the methods used or any other matter which might hinder any future investigation into P or any other person, and(c) shall be given in writing within 90 days after— (i) the conclusion of the investigation (subject to subsection (2));(ii) cancellation of the authorisation or warrant;(iii) a determination that it may be given having regard to the matters referred to in subsection (2)(c).”
Lord Paddick
My Lords, I shall also speak to Amendments 137B to 137F in my name and that of my noble friend Lady Hamwee. We return to the issue of informing innocent people when they have been subjected to targeted surveillance by law enforcement or the security and intelligence agencies. The European Court of Human Rights said in 2007:
“As soon as notification of targeted surveillance can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.
When we raised the issue in Committee, the Minister raised a series of quite reasonable objections, which we have tried to address in this new amendment.
In Committee, the Minister said:
“It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact”.
Of course, we agree. We therefore restrict the notification requirement to targeted interception warrants, where a person’s communications are intercepted, and targeted examination warrants, where communications are acquired in bulk and a UK citizen’s communications are among those acquired in bulk and the security and intelligence agencies wish to examine those communications. The provisions would also apply where a targeted equipment interference warrant is used. This would ensure that only when the specific individual’s communications are intercepted or equipment interfered with would notification have to be considered.
In Committee, the Minister said that,
“we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution”.
We have therefore written into the amendment that notification shall not be given if the person is suspected of being involved in terrorism-related or other criminal activity.
In Committee, the Minister said that,
“suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case”.
Of course, we agree. The amendment now states that notification shall not be given if it might prejudice any continuing or anticipated investigation concerning the subject of the surveillance or any other person.
The Minister said in Committee that our amendment,
“would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them”.
We do not agree. We hope that the number of occasions when completely innocent people are targeted will be small and the amendment now includes the provision that notice should not be given if the Investigatory Powers Commissioner determines that it is in the interests of national security, or the public interest in preventing or detecting serious crime, that it is not given. In most cases, this will be obvious and require no further justification from the public authorities.
The Minister in Committee further objected that notification would,
“not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public”.—[Official Report, 5/9/16; col. 858.]
It has not been the long-standing policy of successive Governments to deny that the security services kept a record of the details of every phone call made in the UK until recently and it is not a reasonable argument simply to say, “That’s what we’ve always done”. However, we have taken on board the Minister’s other criticisms and included in the amendment that notification,
“shall include no details of the methods used or any other matter which might hinder any future investigation”.
Having, I believe, dealt with all the objections the Minister raised in Committee, I hope the Minister responding will reconsider whether post-event notification could, in the circumstances I have described, be allowed, and that the Government will accept the amendment.
Amendments 137B to 137E are related to Amendment 137A, to the extent that they seek to tighten up on error reporting. Amendment 137B deletes the phrase “the Commissioner considers that” from Clause 209(1), so that the commissioner must report a serious error whether or not they consider it so. Whether the error is serious should be an objective test, not a subjective consideration by the commissioner. Amendment 137C deletes the condition that,
“it is in the public interest for the person to be informed”.
Surely, if the error is serious it should be reported—or, to put it another way, surely it must always be in the public interest if the error is serious.
Amendment 137D would delete the provision stating that notification should be given only if the error has caused “significant” prejudice or harm to the person concerned, and adds wording so that the clause would state that they should be notified if the error,
“has caused or may cause prejudice or harm to the person concerned”.
The argument here has echoes of an amendment that the Government rejected earlier on Report—that asking a commissioner to make a decision on whether the prejudice or harm is significant muddies the waters.
Amendment 137E would delete Clause 209(9)(b), which defines a relevant error. There appears to us to be no need to describe in regulations the kind of error to which these provisions relate. We believe that the definition in Clause 209(9)(a) is sufficient.
Amendment 137F relates to the final paragraph of Clause 209, which states that the Investigatory Powers Commissioner should,
“keep under review the definition of ‘relevant error’”.
We have added a requirement that any recommendations should be included in reports made under Clause 212, which covers annual and other reports required from the Investigatory Powers Commissioner.
I beg to move Amendment 137A.
Lord Rooker (Lab)
Can the noble Lord explain proposed new subsection 3(b)? Could the subject of a warrant challenge that subsection using other legislation —on the fact that there are “no details”, for example? Is it open to challenge by that person, using any of the other laws on the statute book?
Lord Paddick
I am grateful to the noble Lord, Lord Rooker. I have absolutely no idea whether they could or could not.
Lord Rooker
I submit that they could. The lawyers will find a way to fill the courts with challenges from the crooks and spivs we are trying to protect the British public from. But I will wait for the Minister’s technical answer, rather than the one I gave.
Lord Beith (LD)
To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.
Lord Keen of Elie
Amendment 137A seeks to insert a provision into the Bill that would require the Investigatory Powers Commissioner to notify the subject of a targeted interception or equipment interference warrant in certain circumstances. The amendment tries to tightly draw those circumstances, and I am grateful to the noble Lord, Lord Paddick, for recognising in drafting it that a significant number of factors should rightly preclude such notification from taking place. Nevertheless, I still think the amendment could threaten to undermine the capabilities that law enforcement and the security and intelligence agencies rely on to pursue the most serious wrongdoers. The amendment recognises that notifying a person that they have been the subject of surveillance may have an immediate impact on an investigation—or it may have damaging effects on the public interest or national security more broadly.
That being the case, it is extremely difficult to envisage a scenario where notification could responsibly be allowed to occur. Notifying a person that their communications have been intercepted, irrespective of whether that notification included any further details about the methods used, would necessarily risk hindering a future investigation. For example, there will be circumstances where a terrorist or serious criminal who was previously the subject of a warrant will no longer be an active suspect in an investigation. Advising that individual that they have been the subject of interception may help them to evade detection if they were minded to return to or resume criminal activity.
On one reading, then, the amendment would not provide for disclosure other than where a person has been the subject of deliberate wrongdoing or a serious error. If that is the intention behind the amendment—and I fear it is not—it is redundant, because there is already provision in the Bill to notify people who have been the subject of serious errors.
The alternative, of course, is that the amendment should provide for individuals to be notified in a wider range of circumstances. I find that prospect troubling. As I say, it is never possible to know whether an individual will return to criminality in the future. Even if they do not, revealing the fact that they were the subject of a warrant may provide some small insight into the techniques and capabilities used by law enforcement and the security and intelligence agencies. That, in turn, would provide an avenue for the most determined and capable actors to piece together a picture of the agencies and how they work, handing an advantage to those we are working hard to pursue—let alone the prospect that they might seek disclosure by way of a review of the conduct of the authorities in order to determine exactly what methodology had been employed. For all these reasons, I hope the noble Lord will be prepared to withdraw this amendment.
I turn to Amendments 137B to 137F, which, as the noble Lord indicated, are in a sense consequential on his primary amendment, and which deal with error reporting as provided for in Clause 209. Clause 209 is of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform that individual of the error and their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as considered necessary for the person to bring a claim.
Clause 209 seeks to maintain a very delicate balance between two important but competing interests. On one hand, there is the right of the individual who has suffered harm as a result of the error to seek some sort of redress. On the other, there is the long-standing security and intelligence agency principle of neither confirming nor denying that an individual has been the subject of investigatory powers. This principle is vital to the security and intelligence agencies, as it prevents those who would wish to do us harm launching spurious complaints and claims in order further to understand the agencies’ most sensitive capabilities. I hope the noble Lord will agree that, given the fine balance between these two principles, it is right that the decision be taken on a case-by-case basis by the commissioner, a senior member of the judiciary who will have full access to the facts on which to base their decision.
Amendments 137B and 137C would remove the commissioner’s discretion to make that judgment. He would no longer be able to consider how the wider public interest would be best served, and would instead be compelled to tell an individual if they had been the subject of a serious error, regardless of the consequences and the harm that might be caused. I do not think that is right. It is, for example, conceivable that an investigation into a dangerous criminal gang may result in action mistakenly being taken against an innocent associate of one of the gang members. That would be unfortunate, and the commissioner would undoubtedly want to ensure that remedial action was taken at an appropriate time. But before doing so, it is right that the commissioner should consider the public interest in informing the person, balanced against the risk of undermining an ongoing investigation, and that is what the clause as drafted provides for.
Amendment 137D seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. I do not think it necessary or appropriate, given the difficult balance that has to be struck here, for persons to be informed when there is such an error. This would put the commissioner in the difficult position of speculating on potential future consequences. Additionally, the commissioner does not get only one opportunity to assess the harm that has occurred. We would of course expect the commissioner to keep under review the consequences of an error and, if it resulted in harm at some point in the future, it would be open to the commissioner to inform the individual at that point. This seems a more sensible approach than putting the commissioner in the position of second-guessing what potential future consequences may one day occur or not occur.
Lord Paddick
I am very grateful to the noble and learned Lord for his explanations, which I will take time and care to read particularly in relation to Amendments 137B to 137F, the latter amendments. Regarding Amendment 137A, I am still concerned at what might happen should somebody bring an action before the European Court of Human Rights, bearing in mind what it has said about the importance of informing people who have been the subject of targeted surveillance. However, at this stage I am prepared to leave that to the courts rather than to the House this evening and on that basis, I beg leave to withdraw the amendment.
Lord Keen of Elie
“(3A) In addition to consulting the Secretary of State under subsection (3), the Judicial Commissioner must also consult the Scottish Ministers if it appears to the Commissioner that providing the advice or information might be prejudicial to—(a) the prevention or detection of serious crime by a Scottish public authority, or(b) the continued discharge of any devolved functions of a Scottish public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.(3B) In subsection (3A)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”
Lord Keen of Elie
My Lords, I shall speak to Amendment 138 and the other amendments in this group, which would ensure that the Scottish Government are provided with appropriate means to engage with and support the work of judicial commissioners relating to devolved powers in Scotland.
Clause 210 allows a judicial commissioner to provide advice and information to any person. It requires the judicial commissioner to consult the Secretary of State first where providing advice and information might be contrary to the public interest. It is clearly appropriate that Scottish Ministers are similarly consulted if the provision of advice and information by the judicial commissioner may be prejudicial specifically to activities that fall under those Ministers’ responsibility. Accordingly, Amendments 138 and 139 would require the judicial commissioner to consult additionally the Scottish Ministers when providing information and advice that may be prejudicial to the prevention or detection of serious crime in Scotland, or the continued discharge of any devolved functions of a Scottish public authority.
Clause 216 sets out the funding arrangements for the Investigatory Powers Commissioner and the judicial commissioners. Amendment 148 would grant the Scottish Ministers the power to make such payments as they consider appropriate to judicial commissioners for work relating to the exercise of devolved functions by public authorities in Scotland. This simply maintains the current position, as the Scottish Government currently have the power to pay surveillance commissioners who carry out their functions wholly or mainly in Scotland such allowances as the Scottish Ministers consider appropriate. The surveillance commissioners will be abolished by the Bill, and their functions taken on by the Investigatory Powers Commissioner and the judicial commissioners. Accordingly, I beg to move Amendment 138.
Baroness Hamwee
My Lords, the noble and learned Lord may have answered one of my questions about Amendment 148. It was about whether this sort of arrangement is in place elsewhere because, on reading it, it seemed that there might be scope for some squabbles as to who should be responsible for paying how much. However, I think he said that this is already working satisfactorily under the current arrangements. My other question is about the term “allowances”, which in normal language means less than paying salaries. It does not address payment for facilities, infrastructure and so on. It seemed a curious term to use but that is probably because I do not understand quite how the system will work. Allowances, to most of us, sounds like more like an ex gratia arrangement.
Lord Keen of Elie
Might I be permitted to respond briefly to the noble Baroness on these points? First, these amendments have been agreed with officials in the Scottish Government and reflect an existing arrangement whereby the allowances of surveillance commissioners are determined by the Scottish Ministers in that context. “Allowances” is used there, as I understand it, because we are not relying upon them for payment of certain standing charges incurred in setting up the commissioners, for example.
“( ) information about the operation of the safeguards conferred by this Act in relation to items subject to legal privilege, confidential journalistic material and sources of journalistic information,”
Lord Janvrin
“( ) information about the following kinds of warrants issued, considered or approved during the year— (i) targeted interception warrants or targeted examination warrants of the kind referred to in section 17(2), (ii) targeted equipment interference warrants relating to matters within paragraph (b), (c), (e), (f), (g) or (h) of section 96(1), and(iii) targeted examination warrants under Part 5 relating to matters within any of paragraphs (b) to (e) of section 96(2),”
Lord Janvrin (CB)
My Lords, I shall speak to Amendments 142 and 145 to Clause 212. These are in my name and I speak as a member of the Intelligence and Security Committee. This clause deals with the annual reports to be made by the Investigatory Powers Commissioner to the Prime Minister on the functions of the judicial commissioners.
The subject of Amendment 142 concerns those targeted warrants which relate to groups of people engaged in a common activity or sharing a purpose, commonly referred to as thematic warrants. The Intelligence and Security Committee has considered that thematic warrants have the theoretical potential to intrude upon the privacy of a great many people and there have been concerns as to the widespread intrusion they might theoretically be used to authorise. In the committee’s report on the draft Bill, we recommended that such warrants should be subject to greater constraints. In seeking to address this in the other place, the chairman of the ISC explored, first, whether the duration of these warrants could be limited or, secondly, whether the grounds on which they could be authorised could be drawn more narrowly.
In response, the Government presented the committee with convincing classified evidence regarding the use of these forms of warrants across a number of real operations, involving serious threats to our security. This evidence was reassuring in demonstrating that these operations, enabled by the so-called thematic warrants, intruded only on small and defined groups of people, not on the hundreds or even thousands of people that some perhaps feared might be the case. Nevertheless, the ISC believes that some form of additional constraint is justified and has therefore been exploring options with the Government over recent months. The conclusion is that we might best achieve this aim by strengthening the scrutiny given to these warrants. This is the aim of Amendment 142 to Clause 212.
The amendment places a specific requirement on the commissioner to report on thematic warrants, thereby exposing them to increased scrutiny by the commissioner, audit by the commissioner’s staff and, through the commissioner’s published reports, debate and scrutiny by Parliament, the media and public. I am most grateful for the Government’s co-operation in finding a solution to this issue relating to thematic warrants, and I hope the Minister will be able to support this amendment.
If that is the case, it would be helpful if it were possible for the Minister to outline in his comments the degree of disclosure about thematic warrants that he might expect to see in those reports. The ISC’s assumption is that it would include the number of thematic warrants applied for and issued, but it hopes that it might also include an indication of the number of people covered by the warrants. It would improve transparency and public reassurance if it can be demonstrated in this manner that these warrants are not as broad as some have feared.
Amendment 145 to Clause 212 relates to the referral of cases to the Investigatory Powers Commissioner. This is an issue I raised in Committee. In its report on the draft Bill, the Intelligence and Security Committee recommended that it should be able to refer matters to the IP Commissioner so that the commissioner can undertake detailed investigations or audits about concerns raised by the ISC. This enables the oversight mechanisms to complement one another, with the ISC considering the strategic issues and overall policies and the commissioner focused on specific authorisations and warrants for individual operations. Noble Lords will note that the power of referral from the ISC to the IP Commissioner has already been introduced into the Bill at Clause 214, and we are grateful for the Government’s assistance in its inclusion.
This further, very small, amendment now picks up the point I raised in Committee that any report the commissioner might make to the Prime Minister as a result of a referral from the ISC should also be shared, as appropriate, with the committee. This will strengthen the oversight community as a whole, and I hope the Government will feel able to support the amendment. I beg to move.
Earl Howe
My Lords, as we have discussed in previous debates in this House and in the other place, the use of thematic warrants is crucial to our law enforcement and security and intelligence agencies, but we welcome these amendments, which will provide reassurance that these warrants will be subject to specific scrutiny by the Investigatory Powers Commissioner and enhance transparency about their use.
The noble Lord, Lord Janvrin, invited me to comment on the degree of disclosure I would expect to see in the commissioner’s report. In my view—and I hope the noble Lord will understand this—it would not be appropriate for the Bill or indeed government to fetter the independence of the commissioner by specifying the detail of what he may choose to publish in relation to the use of thematic warrants. In due course the commissioner will wish to consider whether his duty to publish information about the use of these warrants is best satisfied by the publication of data such as the number of thematic warrants issued during a limited period or other information relating to the way in which thematic warrants are used in practice. These decisions will rightly rest with the Investigatory Powers Commissioner. However, I welcome the amendment which imposes a very clear duty on the commissioner to ensure that these warrants are subject to particularly robust scrutiny and that information is regularly put in the public domain about their use. Indeed, I would expect the commissioner to ensure that his report serves to illuminate any areas that cause him particular concern.
The process by which the Intelligence and Security Committee of Parliament can refer issues to the Investigatory Powers Commissioner was previously discussed in this House. It is right that the committee can bring issues that merit further investigation to the attention of the IPC, who may then decide whether to take further action. In addition, it is important that the right balance is struck between the independence of the IPC on the one hand and respecting the remit of the committee on the other hand. By requiring that the Prime Minister provides a copy of any IPC report that follows an investigation, inspection or audit carried out following a committee referral in cases where the report falls within the remit of the committee, this amendment finds that balance. Accordingly, I am happy to accept both these amendments.
Lord Janvrin
I thank the Minister for his helpful response. I take his point about the importance of the independence of the Investigatory Powers Commissioner.
“( ) information about the work of the Technology Advisory Panel,”
Lord Janvrin
“(11) Subsection (12) applies if the Prime Minister receives a report from the Investigatory Powers Commissioner under subsection (1) or (4) which relates to an investigation, inspection or audit carried out by the Commissioner following a decision to do so of which the Intelligence and Security Committee of Parliament was informed under section 214(2).(12) The Prime Minister must send to the Intelligence and Security Committee of Parliament a copy of the report so far as it relates to—(a) the investigation, inspection or audit concerned, and(b) the functions of the Committee falling within section 2 of the Justice and Security Act 2013.”
“(3) The Scottish Ministers may pay to the Judicial Commissioners such allowances as the Scottish Ministers consider appropriate in respect of the exercise by the Commissioners of functions which relate to the exercise by Scottish public authorities of devolved functions.(4) In subsection (3)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”
“(5) The Investigatory Powers Commissioner or any other Judicial Commissioner may, to such extent as the Commissioner concerned may decide, delegate the exercise of functions of that Commissioner to any member of staff of the Judicial Commissioners or any other person acting on behalf of the Commissioners.(6) Subsection (5) does not apply to—(a) the function of the Investigatory Powers Commissioner of making a recommendation under section 205(4)(e) or making an appointment under section (Members of the Panel)(1),(b) any function which falls within section 207(8), or(c) any function under section 55(3) or 125(3) of authorising a disclosure,but, subject to this and the terms of the delegation, does include functions which have been delegated to a Judicial Commissioner by the Investigatory Powers Commissioner.(7) The delegation under subsection (5) to any extent of functions by the Investigatory Powers Commissioner or any other Judicial Commissioner does not prevent the exercise of the functions to that extent by the Commissioner concerned.”
“(2A) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, provide for the abolition of the office of the Investigatory Powers Commissioner for Northern Ireland.(2B) The power to make regulations under subsection (2A) (including that power as extended by section 242(1)(c)) may, in particular, be exercised by modifying any provision made by or under an enactment (including this Act).(2C) Regulations made by virtue of subsection (2B) may, in particular, repeal— (a) section 61 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Commissioner for Northern Ireland), and(b) the words “or the Investigatory Powers Commissioner for Northern Ireland” in section 207(4)(f) of this Act.”
““the Chief Surveillance Commissioner” means the Chief Commissioner appointed under section 91(1)(a) of the Police Act 1997,”
““the other Surveillance Commissioners” means—the Commissioners appointed under section 91(1)(b) of the Police Act 1997, andthe Assistant Surveillance Commissioners appointed under section 63(1) of the Regulation of Investigatory Powers Act 2000,”
“( ) the Technology Advisory Panel,”
“(1A) A code about the exercise of functions conferred by virtue of Part 2, Part 5 or Chapter 1 or 3 of Part 6 must also contain provision about when circumstances are to be regarded as “exceptional and compelling circumstances” for the purposes of any provision of that Part or Chapter that restricts the exercise of functions in relation to items subject to legal privilege by reference to the existence of such circumstances.(1B) The Investigatory Powers Commissioner must keep under review any provision included in a code by virtue of sub-paragraph (1A).”
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 160 is a probing amendment, and the debate should be short. Schedule 7 provides for codes of practice. Our debates on the previous day of Report on journalistic material, which is referred to in paragraph 2(2) of Schedule 7, made me have a look at the personal records which are also referred to in that paragraph as being “relevant confidential information”. I was concerned about health records, because the information is described as that,
“which is held in confidence by a member of a profession”.
I wanted to check that health records would fall within this. A health authority obviously does not cover all of this. There are health records which are held for entirely proper purposes but not by people that one might describe as being professionals—or certainly not members of a profession. So I decided, even at this late stage, to table this amendment in order that we could understand precisely what is meant by confidential information when it consists of personal records. I beg to move.
Earl Howe
My Lords, Amendment 160 would amend Schedule 7 to the Bill to require that every code of practice made under the Bill must provide guidance in relation to personal records held by a health authority. I hope I can convince the noble Baroness that this amendment is unnecessary. Schedule 7 already requires that the codes of practice must make provision relating to personal records held by a member of a profession, which would include health records held by a medical professional.
The Government do not believe that it is necessary to impose a similar requirement for personal records held by a health authority, as that is a discrete issue which will not be relevant to all of the codes of practice. For example, it will not be relevant to communications data. Of course, that does not mean that the codes cannot include such material should it be necessary to do so. There is already a reference to a health service body in the draft personal datasets code, for example.
The codes of practice have been published in draft to help facilitate parliamentary scrutiny of the Bill, but they will be subject to consultation and separate further scrutiny by Parliament after Royal Assent. That will provide noble Lords and others with the opportunity to consider the detail contained in the codes, including to argue the case for the inclusion of particular issues in particular codes of practice. On that basis, I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, that is helpful and it has enabled me to make my point, which may of course be one that we will come back to, depending on how we view the codes when we come to deal with them. I thank the Minister and beg leave to withdraw the amendment.
“( ) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, amend subsection (3) so as to add the Court of Appeal in Northern Ireland to the list of courts mentioned there.”
“(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);”
“(czd) conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);(cze) the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;(czf) the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);(czg) the giving of an authorisation under section 200(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);(czh) the giving or varying of a direction under section 203 of that Act (directions where no bulk personal dataset warrant required);(czi) conduct of a kind which may be required by a notice under section 228 or 229 of that Act (national security or technical capability notices);(czj) the giving or varying of such a notice;(czk) the giving of an authorisation under section 143(5)(c) or 179(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);(czl) any failure to—(i) cancel a warrant under Part 2, 5, 6 or 7 of that Act, or an authorisation under Part 3 of that Act;(ii) cancel a notice under Part 3 of that Act;(iii) revoke a notice under Part 4, or section 228 or 229, of that Act; or(iv) revoke a direction under section 203 of that Act;(czm) any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);”
“( ) in subsection (6) (limitation for certain purposes of what is conduct falling within subsection (5))—(i) after “on behalf of” insert “an immigration officer or”, and(ii) after paragraph (d) insert—“(dza) the Competition and Markets Authority;”( ) after subsection (6) insert—“(6A) Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.””
“( ) in subsection (7) after “if” insert “it is conduct of a public authority and”,”
“(bb) a direction under section 203 of that Act;(bc) a notice under section 228 or 229 of that Act;”
“(azb) an order quashing or revoking a direction under section 203of that Act;(azc) an order quashing or revoking a notice under section 228 or 229 of that Act;”
“Technology Advisory Panel
(1) The Investigatory Powers Commissioner must ensure that there is a Technology Advisory Panel to provide advice to the Investigatory Powers Commissioner, the Secretary of State and the Scottish Ministers about—(a) the impact of changing technology on the exercise of investigatory powers whose exercise is subject to review by the Commissioner, and(b) the availability and development of techniques to use such powers while minimising interference with privacy.(2) The Technology Advisory Panel must provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as the Commissioner may direct.(3) Subject to this, the Panel may provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so).(4) The Panel may provide advice to the Secretary of State or the Scottish Ministers about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so) but such advice to the Scottish Ministers may only relate to matters for which the Scottish Ministers are responsible.(5) The Panel must, as soon as reasonably practicable after the end of each calendar year, make a report to the Investigatory Powers Commissioner about the carrying out of the functions of the Panel. (6) The Panel must, at the same time, send a copy of the report to the Secretary of State and (so far as relating to matters for which the Scottish Ministers are responsible) the Scottish Ministers.”
“Members of the Panel
(1) The Investigatory Powers Commissioner must appoint such number of persons as members of the Technology Advisory Panel as the Commissioner considers necessary for the carrying out of the functions of the Panel.(2) Subject as follows, each member of the Panel holds and vacates office in accordance with the member’s terms and conditions of appointment.(3) A member of the Panel must not act in a way which the member considers to be contrary to the public interest or prejudicial to—(a) national security,(b) the prevention or detection of serious crime, or(c) the economic well-being of the United Kingdom.(4) A member of the Panel must, in particular, ensure that the member does not—(a) jeopardise the success of an intelligence or security operation or a law enforcement operation,(b) compromise the safety or security of those involved, or(c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.(5) Section 213(2) and (7) (information powers) apply to a member of the Panel as they apply to a Judicial Commissioner.”
Investigatory Powers Bill
Wednesday 19th October 2016
(8 years, 4 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
16:52 - Division on Amendment 196A - Ayes: 82 / Noes: 321 - Amendment 196A disagreed.
Lord Keen of Elie
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Amendments 180, 181, 197, 198, 205, 206, 231 and 232 relate to judicial commissioner approval of major modifications to warrants issued under Parts 6 and 7 of the Bill. They seek to provide additional clarity regarding the matters the commissioner must review when deciding whether to approve such a modification.
The Bill already provides for major modifications to such warrants. In the context of bulk interception, bulk acquisition and bulk personal dataset warrants, a major modification may be used to add or vary one of the operational purposes for which data may be examined under the warrant. As regards bulk equipment interference warrants, a major modification can additionally add to or vary any description of conduct in the warrant.
The Bill requires full double-lock authorisation from a Secretary of State and a judicial commissioner for any major modification to a bulk warrant. These amendments will not change that. Instead, they provide greater clarity about the matters that a commissioner must consider when determining whether to approve a modification to a bulk warrant.
The amendments specify that, for major modifications to add or vary an “operational purpose”, a judicial commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary, applying the same principles as would be applied by a court on an application for judicial review and ensuring that the commissioner complies with the duties in relation to privacy set out in Clause 2, the so-called privacy clause.
In the context of bulk equipment interference, if a major modification proposes to add or vary a description of conduct, the judicial commissioner must also review the Secretary of State’s conclusions as to whether the conduct authorised by the modification is proportionate to what is sought to be achieved by it. The amendments are intended to ensure clarity and consistency across the Bill, and as such are to be welcomed.
The sharing of data and intelligence with our overseas partners is critical to the work of our security and intelligence agencies. Without working together with our allies, those agencies could not do their vital work of keeping us safe. Amendments 184, 185, 201, 202, 209 and 210 simply clarify the consideration that must be given by the Secretary of State before authorising the disclosure to overseas authorities of data acquired under the bulk powers in the Bill.
The Bill already places a duty on the Secretary of State to consider whether corresponding safeguards will be applied to the data that are to be shared with the overseas authority in relation to their retention and disclosure. These amendments make explicit that the Secretary of State must be satisfied that the overseas authority has in place safeguards, to the extent appropriate, that correspond to those in the Bill not only in respect of the retention and disclosure of the data shared in bulk but in relation to their selection for examination. This group of amendments therefore makes absolutely clear that proper consideration will be given to the examination safeguards that are applied whenever bulk data are shared with another country. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.
It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.
In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.
However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,
“to such extent (if any) as the Secretary of State considers appropriate”.
It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.
We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.
The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,
“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.
The judgment notes that,
“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.
I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.
Baroness Hamwee (LD)
My Lords, we, too, are happy with the government amendments in this group and we support Amendment 185A. The issue is about the discretion in the application of Clauses 141(2) and 141(5)—and, shortly, Clause 143—not their relevance. The term “appropriate” suggests to me a degree of discretion which may not be related to relevance. The term “mutatis mutandis” is not one commonly used in legislation, I think, but it is that provision that one wants to see—only changing what is necessary to be changed. I do not know the proper way of dealing with that, but “appropriate” seems to be inappropriate in the context.
Lord Keen of Elie
My Lords, as the noble Baroness, Lady Hayter, has observed, Amendment 185A would remove the Secretary of State’s discretion to consider the extent to which the application of corresponding safeguards is appropriate in relation to the sharing with an overseas authority. The Government consider that this is a vital provision and its removal from the Bill would pose a real risk to the national security of this country and other countries around the world. The threat we face from terrorism and serious and organised crime is global. It is inevitable that there will be circumstances where our security and intelligence agencies uncover threats to other countries through intelligence derived from a bulk interception warrant.
In some circumstances, such threats will be against countries with which the United Kingdom has well-established intelligence-sharing relationships, and in such circumstances there are likely to be corresponding safeguards applying to the handling of intercepted material. However, there will be occasions when such intelligence indicates a serious threat to a country overseas, potentially in urgent circumstances, whose authorities simply do not apply the same level of safeguards as those included in the Bill. In such circumstances, it is crucial that the Bill places a duty on the Secretary of State to consider the arrangements that should be in place to regulate the disclosure. This decision will need to balance the risk that the material will not be subject to the same level of safeguards that it would be in this country against the risks to the security of the country in question if material is not shared.
For example, in some circumstances a failure to share intercepted material containing vital intelligence could result in a terrorist atrocity. Even in such a scenario, the amendment would place an absolute prohibition on the relevant intercepted material being shared because the overseas authority does not apply safeguards corresponding to those in the Bill. This would not be a responsible position and I believe it is only right that the Secretary of State must be responsible for deciding the appropriate arrangements for sharing intercepted material with an overseas authority, considering the particular circumstances of each case. In addition to this consideration by the Secretary of State, the safeguards that apply to the use of bulk interception will be subject to rigorous, independent oversight and scrutiny by the Investigatory Powers Commissioner. This will, of course, include the arrangements for the disclosure of intercepted material overseas.
For the reasons I have outlined, it is absolutely crucial that the Bill provides for the Secretary of State to consider the extent to which corresponding safeguards should apply where intercepted material is being shared overseas. The amendment would fetter that consideration and is both unnecessary and potentially dangerous. Accordingly, I invite the noble Baroness not to move it.
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk interception warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 137, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 137, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“and section (Approval of major modifications by Judicial Commissioners)(4) does not apply in relation to the refusal to approve the decision.”
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“( ) For the purposes of subsection (3)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the intercepted content for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
“(3A) Subsection (3B) applies if, in a case where intercepted content obtained under a bulk interception warrant is to be selected for examination—(a) the selection of the intercepted content for examination meets any of the selection conditions in section 143(3)(a) to (c),(b) the purpose, or one of the purposes, of using the criteria to be used for the selection of the intercepted content for examination (“the relevant criteria”) is to identify communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(c) the person to whom the warrant is addressed considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.(3B) The intercepted content may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(3C) A senior official may give an approval under subsection (3B) only if the official considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.”
“(4A) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4B) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (4A), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4C) Each of the following is an “affected party” for the purposes of subsection (4B)—(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”
“Additional safeguard for confidential journalistic material
Where—(a) a communication which has been intercepted in accordance with a bulk interception warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a warrant, see section 141.)”
Lord Janvrin
“Offence of breaching safeguards relating to examination of material under bulk interception warrants
(1) A person commits an offence if—(a) the person selects for examination any intercepted content or secondary data obtained under a bulk interception warrant,(b) the person knows or believes that the selection of that intercepted content or secondary data for examination does not comply with a requirement imposed by section 143 or 144, and(c) the person deliberately selects that intercepted content or secondary data for examination in breach of that requirement. (2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Lord Paddick
“( ) A bulk acquisition warrant may not require data which relates to or includes internet connection records.”
Lord Paddick (LD)
My Lords, Amendment 196A is in my name and that of my noble friend Lady Hamwee. It seeks to remove internet connection records from the type of communications data that can be acquired in bulk. Noble Lords will be very well aware of my views, and the agreed view of the Liberal Democrats, on internet connection records. We believe that they are unnecessary and disproportionate, for the reasons that I have articulated in detail throughout the passage of the Bill.
I shall just remind your Lordships what internet connection records mean. Internet service providers are being forced to keep a record of every website that everyone in the UK has visited in the last 12 months, whether the subscriber is suspected of crime or not. Even though only the first page of each website visited is shown, visiting www.relate.org.uk could, for example, immediately indicate that your marriage was in trouble. However there are some safeguards, including some concessions extracted by the Labour Opposition, to ensure that only the internet connection records of those suspected of crimes that could result on conviction in a sentence of 12 months’ imprisonment or more can be examined by law enforcement agencies.
We are also grateful to the Labour Opposition for securing the review of bulk powers carried out by David Anderson QC, the Independent Reviewer of Terrorism Legislation. We are particularly grateful to David Anderson for highlighting in paragraph 2.41(b), on page 33 of his report on bulk powers, that,
“it is not currently envisaged that the bulk acquisition power in the Bill will be used to obtain internet connection records”.
However, in a footnote at the bottom of that page, Mr Anderson states that he has been told,
“that this is no more than a statement of present practice and intention: neither the Bill nor the draft Code of Practice rules out the future use of the bulk acquisition power in relation to ICRs”.
In Committee, the noble and learned Lord, Lord Keen, said:
“I can confirm to the Committee that the agencies do not currently acquire internet connection records in bulk and have no current intention to do so. It is however important to ensure that we do not legislate against the possibility of internet connection records being acquired in bulk, should agencies make a case which demonstrates that this might be necessary and proportionate in the interests of national security in future”.—[Official Report, 7/9/16; cols. 1087-88.]
Surely we should be legislating for a proven need, not not legislating against a possible but unlikely proven one.
Noble Lords will remember that the security services—GCHQ, MI5 and MI6—have all said that they do not need internet connection records in order to do their work. The power to acquire communications data in bulk, including the power to acquire ICRs in bulk, is available only to those agencies. The power to acquire internet connection records in bulk is therefore not needed. They are not collected in bulk at the moment, and there is no current intention to do so. If this were an opposition amendment to include ICRs in bulk data acquisition, the Government would quite rightly say it was unnecessary. The power to acquire ICRs in bulk also strips away all the safeguards that are in place when law enforcement agencies apply for individual internet connection records.
This is the online equivalent of Section 44 of the Terrorism Act, which allowed the police to stop and search people without any reasonable suspicion. The former Home Secretary, now the Prime Minister, Theresa May took that power away from the police because she considered it disproportionate.
Lord Harris of Haringey (Lab)
Surely Section 44 was for target hardening and deterrence rather than for any other purpose.
Lord Paddick
I am very grateful to the noble Lord, Lord Harris, but that is not what I understood Parliament’s intention was when the legislation was enacted. We can argue the point. If the analogy with stop and search sounds familiar to noble Lords next to me, including the noble Lord, Lord Harris of Haringey, it is because it is an analogy that was used by the shadow Home Secretary Diane Abbott in describing the powers under the Bill, which she describes as draconian.
The pieces of this legislative jigsaw are beginning to fall into place. Telephone operators already keep a record of the details of every phone call made and every text message sent. Internet service providers are being forced by this Bill to keep a record of every website, you, I and everyone else in this country have visited over the previous 12 months, which is a provision this House agreed to on Monday in a Division when it rejected the Liberal Democrat amendment to prevent it. A request filter, operated by or on behalf of the Government will be constructed. It will have direct feeds into the databases of communications providers, including access to the sensitive personal information of every subscriber to telephone and internet services in the UK, every call they make and every website they visit. The House agreed to that provision in a Division on Monday when it rejected the Liberal Democrat amendment to prevent it. The power is then given by this part of the Bill to allow all that sensitive personal information—details of every phone call made and every website visited—to be downloaded at will by the security agencies with no further authorisation. I hope that at least some noble Lords are feeling uncomfortable at that prospect. Our amendment removes internet connection records from the data that can be acquired under a bulk acquisition warrant. I beg to move.
Lord Carlile of Berriew (LD)
My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.
The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:
“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.
The GCHQ paper to which I referred dealt with “further afield”.
Mr Anderson continued:
“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”.
Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.
Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.
I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.
Lord Paddick
The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.
Lord Carlile of Berriew
If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.
The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.
Lord Rooker (Lab)
I will answer that point. The Bill of course is not draconian in any way whatever. It is a modest response to the technology that exists today, and an attempt to look at the technology of tomorrow that we do not know about. That is part of the problem. I regret that I was a bit late and missed the first 20 seconds of the noble Lord’s introduction, so I may have this wrong, but he gave the impression that David Anderson supported his amendment. One only has to go to the report published in August, from which I want to put two sentences on the record. Paragraph 6.16 says:
“There is a clear value in the use of bulk powers to eliminate lines of enquiry, so that resources can be concentrated elsewhere and disruption to the public minimised”.
I do not think we should fetter the security services by this amendment. The other sentence from the report that I want to put on the record is in paragraph 6.47, at point (d):
“Even where alternatives might be available, they are frequently more intrusive than the use of bulk acquisition”.
Most of the bulk acquisition will never, ever be read. The vast majority—99.999%—will never be read or studied by anybody, and it gives a false impression when the noble Lord says that all our telephone calls, internet searches, and web browsing will be read by someone. That is simply not true. What is more, he has been briefed and knows that that is the case. I do not see why the opponents of the Bill, in this House or the other House, should try to give a false impression of what it is trying to do. I hope the noble Lord tests the opinion of the House, because I would like it clearly on the record that he probably has little or no support for his amendment.
Lord Campbell of Pittenweem (LD)
I can be brief. I must begin of course by expressing my regret that I do not agree with my noble friend on the Front Bench. There is nothing more insulting than the expression, “If you could only see what passes across my desk, you would take a different view”. I do not use that expression, but I have to admit that I cannot expunge from my memory my experience as a member of the Intelligence and Security Committee and my contact during that period with the security services. Essentially, we are talking about a question of judgment. My judgment is legitimately assisted by the conclusions of the report from Mr David Anderson, who was, a bit like Moses, dispatched up the mountain and told to come back with tablets of stone. In particular he came back with case studies, and I defy anyone to read them and not be persuaded beyond all doubt of the necessity for the powers that we are discussing today. As my noble friend Lord Carlile has pointed out, Mr Anderson reached the proven conclusion of the operational purpose of three powers and made a further case in respect of the fourth.
Sometimes in the course of these deliberations we confine ourselves to the question of terrorism. As has been mentioned, I think in passing, we should always remember that these are powers that are apt to deal with the question of organised crime and, more particularly, in the rather febrile atmosphere that surrounds the matter, the question of child sexual abuse.
Mr Anderson made the observation, which I doubt anyone would wish to challenge, that the pace of technological change is frightening. We all carry a mobile phone in our pockets; if we think of the first one we ever got some 20 years ago and compare it with the capacity of the one that we now have, that is as powerful an illustration of technological change as one could imagine.
I suppose the question may arise as to whether what we are discussing is necessary and proportionate. I respectfully suggest that the nature of the threat—I noticed as soon as I came into the building that the threat level is still severe—and the experience across the Channel, plus the experience of the security services in dealing with plots, argues beyond peradventure that what is proposed here is both necessary and proportionate. For these reasons, I regret I will not be able to follow my noble friend Lord Paddick when he tests the opinion of the House.
Lord Oates (LD)
My Lords, I support my noble friend Lord Paddick and the amendment that he has moved. I should say at the outset that I do not doubt for one moment the very severe threats that we face, nor the essential and dedicated work done by our security services and the police. In the coalition Government we had to tackle many of these issues, and the then Deputy Prime Minister was always as impatient with those who were careless about our security as he was with those who were careless about our liberty.
So I understand the reality of the threats that we face. However, I am afraid I cannot agree with my two noble friends who have just spoken. We have to be very clear what we are talking about in the amendment, which is specifically about ICRs. I think that in some of this debate we might have missed that point.
My noble friend Lord Carlile referred to the fact that powers were already in use, but the bulk powers in relation to ICRs obviously cannot be in place because the powers of the Bill granting the requirement to collect ICRs have not come into effect, so they are not collected in that way. I am surprised that my noble friend takes the view that he does, because during the whole course of the debate on the Bill he has made much of the point that he has been consistent. I am not clear why his position has changed so significantly on the collection of ICRs. As I have noted in our previous debates on the subject, on 25 May 2013, writing in the Daily Mail, my noble friend wrote the following:
“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every … user, though we have been accused of that”.
Lord Carlile of Berriew
My noble friend is playing with language. I have never favoured the recording of every website use we make, and I do not support the recording of them now. It is the availability of the metadata that is important. I ask my noble friend to deal with the example I gave in answer to my noble friend Lord Paddick and tell us whether he thinks it is reasonable.
Lord Oates
I am dealing with the fact that we are granting a power under the Bill, as this House voted only a couple of days ago, for all the websites visited by every user in this country, whether suspected of anything or innocent, to be recorded. That is a matter of fact, not a matter of debate.
We also need to deal with the canard that we have heard from people such as the noble Lord who spoke from the Labour Benches earlier, which is that to question the powers granted under the Bill is somehow to question the integrity of the police or the security and intelligence agencies, to cast aspersions on them. That is nonsense. I have nothing but respect for the difficult, often dangerous and always demanding jobs carried out on our behalf by the police and security services. There is no doubt that the vast majority of them do so with absolute dedication and integrity, but it is absurd to suggest that such powers are not on occasion abused. We know they are. That is a matter of fact; it is recorded in our history. Of course, it is inevitable that that is the case: all such agencies are made up of human beings and we are all subject to frailty. That is why, over the years, those who believe in constitutional democracy have insisted on limiting the powers granted to the state and its agents.
That is why we have such concern about the power granted after our debate the other day to record—I repeat—every website visited by every person in this country. The Government will now have the power to demand that that be recorded. That is why we are concerned about that and about the bulk power in relation to it. That is why I will be supporting my noble friend Lord Paddick and my colleagues on the Front Bench: I think that is rightly a matter of grave concern for liberties in this country.
Lord King of Bridgwater (Con)
My Lords, I think the noble Lord accepts one thing: the use of these powers, which are very substantial, could in certain circumstances be essential to obstruct or prevent an otherwise very serious terrorist incident. I am not sure whether he challenges that. The noble Lord, Lord Carlile, referred to the supporting evidence from David Anderson to that effect. So the noble Lord, Lord Oates, is taking the courageous position—as is the noble Lord, Lord Paddick—of being prepared to accept that risk. In the current situation, nobody in this House has any right to be ignorant that the threat at present is severe—and “severe” may be slightly underplaying the scale of the situation at the moment. We know the situation; there is no point drawing attention to it. We know what is happening in Mosul at present, where the instruction among ISIS is, “Don’t hang around here. Get into some of the capitals of the West and see what you can do”. The message is going out to try to cause a terrorist incident right on our doorstep.
Lord Oates
The noble Lord asks me specifically what I believe. It is very simple. I do not believe that we should record the websites visited by every person in this country. I do not think that is merited; it is not a power used by any other “Five Eyes” country or any constitutional democracy that I know of.
Lord King of Bridgwater
So the noble Lord does not agree with David Anderson or with those who said that this could be an essential asset and ingredient in possibly preventing a serious terrorist attack. He is saying that he does not believe that that is true, if I understand him; if he believes that it is true, he is being extremely courageous, in the words of “Yes Minister”, in taking that position. He is taking responsibility for what might happen to people in this country, which is a very brave thing to do.
I do not want to interfere with the slight divisions of view that are appearing among the Liberal Democrats in this House, but I have listened to the noble Lord, Lord Paddick, in a number of these debates. He is very conscientious and he looks as though he has worked very hard in preparing his brief and making speeches in support of the amendments, but he only ever gives us about half the story. He suggested in earlier debates that we were looking for powers that the agencies have not asked for and did not want, and said that he did not know why they were in the Bill. He knows the police—it is the police who are keen to get those powers. He did not put that in his speech; he did not tell the House the background, or that this was not some quirk of the noble Earl, Lord Howe, who wanted to shove stuff into the Bill for his own amusement. That is where that came from. I was disappointed by the noble Lord’s presentation of the amendment, as was exposed by the noble Lord, Lord Carlile. I do not think I heard a single mention of David Anderson or his report in the presentation of this amendment, although I may be wrong.
What stands out in this whole debate is that the Government know that these are very substantial powers, which nobody would wish to see if we could avoid it—and they are there because of the serious threat we face. The Government have recognised that if you are to have those powers, they must be surrounded by the most substantial safeguards there can be. I am known to be a critic of how much time the Government took before the Bill came forward. A number of us thought that there was an urgency about the matter and tried to get it earlier. But the Government have gone to great lengths, setting out the Anderson report and now, as the noble Lord, Lord Carlile, said, producing the code of practice. There was not a single mention from the noble Lord, Lord Paddick, of the code of practice, and I do not know whether he has considered it. I should like him to answer the question of the noble Lord, Lord Carlile. What does he think of the code of practice? It is a further safeguard that the Government have included in these proposals.
We have to protect our citizens. A number of us live with the threat of terrorism in our lives, in one way or another, and we know the tragedies it can cause in so many different fields. Sometimes we have to take tough and regrettable steps to make sure that innocent people—that everybody—is protected as far as possible. If that happens, I am determined to see that we do it in a situation and structure in which every possible protection is included against abuse and every possible system of accountability for their exercise is kept up to date and regularly inspected. The very elaborate provision that the Government have made in this Bill generally commands respect, except in one or two quarters, where people are still fighting an old battle about what old rights should be and how there should be no interference. In the modern situation in which we live, we must have proper provision to protect our nation and, at the same time, ensure that there is every possible safeguard against abuse.
The Lord Bishop of Chester
My Lords, I am sure we do not want to prolong this debate. As I said on Monday, I was a member of the pre-legislative scrutiny group. You might wonder why a Bishop was invited to be part of that exercise, but I think it was because of this point—the ethics of interference with privacy. I am sorry that the discussion so far has almost become too polarised, because the noble Lord, Lord Paddick, is making a serious point, which I demonstrate by quoting David Anderson in his evidence to the Joint Committee on Human Rights. He said:
“I think there is a human rights issue in relation to this Bill that dwarfs all the others, and it is the question of the compatibility of bulk collection and retention of data with Article 8 of the European convention”.
The noble Lords, Lord Paddick and Lord Oates, make a serious point and we should acknowledge it, even if we come down on the side of the noble Lord, Lord King—as I do—that these powers are necessary and proportionate. The argument is about the safeguards—namely, that the warrant has to be personally signed by the Secretary of State, lapses after six months if it is not renewed, and is subject to the judicial commissioners. The real argument is about that. I do not think internet connection records are in principle different from other things that might be intercepted. However, I acknowledge the serious ethical point that the noble Lords, Lord Paddick and Lord Oates, raised, even if I come down on the side of the Government and the noble Lord, Lord King, in opposing the amendment.
Baroness Harding of Winscombe (Con)
My Lords, I fear that we are repeating the debate we had the day before yesterday. If noble Lords look at this amendment, they will see three reasons why they could support it. One is if they feel that bulk data powers are unacceptable in any circumstances. A second is if they feel that the elaborate controls referred to by my noble friend Lord King and the noble Lord, Lord Carlile, are not good enough. The third is if they object in principle to the collection of internet connection records. From what I have heard this afternoon, the argument of the noble Lord, Lord Paddick, is entirely the third point. I respect his view on internet connection records but we debated this on Monday and the view of the House was very clear. I fear that we are simply repeating that discussion. We should move on.
Lord Rosser (Lab)
As the noble Lord, Lord Paddick, said, David Anderson QC commented in his report that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power for internet connection records. Internet connection records are not currently acquired in bulk but existing legislation already permits the agencies to acquire such records in bulk, albeit there appears to be no present intention to do so.
The effect of this amendment would be to remove an existing legislative provision which could be needed in the future for bulk acquisition—bulk acquisition which David Anderson QC found had contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly to the saving of lives, and which had also been demonstrated to be crucial in a variety of fields. In addition, any such application in the future to obtain such data by the security and intelligence agencies would be covered by the relevant safeguards in the Bill, including in relation to necessity and proportionality in the interests of national security and the approval process.
This Bill is, among other things, about the appropriate balance between security and privacy. We clearly have a different view from that of some other noble Lords on where that appropriate balance lies. Our view is that, for the reasons I have sought to set out, we are unable to support this amendment and, if it is put to a vote, we shall oppose it.
Lord Keen of Elie
My Lords, this amendment would remove the ability for the intelligence agencies to acquire internet connection records in bulk, an issue we have already discussed in Committee and revisited on a number of occasions, as observed by my noble friend Lady Harding. At the time we debated this in Committee, I highlighted the point now made by the noble Lord, Lord Rosser, that this is not a new power introduced by the Bill. This is an existing power. It exists in legislation, albeit, while it is provided for, it is not at present utilised.
As I explained in Committee, it is vital in the current climate, when methods of electronic communication are changing and developing at an exponential rate, that we provide technology-neutral legislation—a point made by the noble Lord, Lord Rooker. We remain of the view that we would not wish to legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case—and they must make a case—which demonstrates that this might be necessary and proportionate in the interests of national security.
We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk, and David Anderson supported this in his bulk powers review. The noble Lords, Lord Carlile and Lord Campbell of Pittenweem, alluded to the observations made by David Anderson. I will refer to only one further quotation: he said that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, though that disruption, almost certainly the saving of lives”.
The noble Lord, Lord Carlile, alluded to some of the examples that were given by David Anderson and worked through in his report.
Lord Paddick
I am grateful to the Minister and to other noble Lords who have contributed to this debate. As regards the comments of my noble friend Lord Carlile of Berriew, despite my request that he specifically address the issue of internet connection records, I did not hear him do so. We are not against the bulk acquisition of communications data in general or per se. We oppose only the bulk acquisition of internet connection records as part of those data.
On the question my noble friend Lord Carlile raised about the codes of practice, of course they are comprehensive. However, through this amendment we are trying to prevent internet connection records being acquired in bulk, which is allowed for in the codes of practice.
The noble Lord, Lord Rooker, was of a different opinion from the one that I quoted—that the Bill was draconian. I am grateful to him for giving me the opportunity to emphasise to the House that it was the current Labour shadow Home Secretary, Diane Abbott, who described the Bill as draconian.
Lord Rooker
For the avoidance of doubt, I understood that—that was the point I made.
Lord Paddick
I did not suggest in any way that David Anderson agreed with this amendment, or that the lists of everybody’s websites would be read, as the noble Lord, Lord Rooker, suggested.
As regards the comments made by my noble friend Lord Campbell of Pittenweem, he referred to case studies in the David Anderson report on bulk data. I cannot emphasise this enough to noble Lords: internet connection records do not currently exist. The telecommunications companies will have to create them. Therefore any case studies in David Anderson’s report do not relate to the bulk collection of internet connection records. Internet connection records do not exist, so they cannot be collected in bulk at the moment.
I acknowledge the great experience of the noble Lord, Lord King of Bridgwater, and his passion about these issues. He emphasised that everything needs to be done to prevent a terrorist attack, and I agree with him 100%. The point that I made in my opening speech when I quoted David Anderson directly, saying that it was a direct quote from him, was that GCHQ, MI5 and MI6—the agencies responsible for keeping us safe from terrorism—say that they do not need internet connection records. Even the Minister said that at present there is no anticipated need to collect internet connection records to prevent a terrorist attack.
I am very grateful to the right reverend Prelate the Bishop of Chester for saying that we are making a fundamental point here. The difference between today’s debate and Monday’s debate is that requiring individuals’ internet connection records has to be based on reasonable suspicion. Thanks to the intervention of the Labour Front Bench, the level of the seriousness of the crime that needs to be suspected before those records can be handed over is higher than the Government first suggested. However, this power would allow everybody’s internet connection records to be acquired in bulk by the security agencies with no reasonable suspicion at all.
Lord Paddick
I am sorry but this is Report and I do not have to give way, unless the noble Lord wishes to clarify what I have just said.
Lord King of Bridgwater
I wish to make an intervention. The noble Lord said again that nobody wants this power. Can he explain why it is in the Bill?
Lord Paddick
It is not for me to explain why the Government want in the Bill a power that currently does not exist, because internet connection records do not exist, and which the security services say they do not want but which the noble and learned Lord says might be needed in the future. It is not for me to justify this power; I am saying to the House why I do not believe it is justified. The noble and learned Lord and the noble Lord, Lord Rosser, made the point that this is an existing power, but how can you have an existing power to acquire something that will not exist until the Bill is enacted?
I have tried to explain very clearly—although unfortunately some people have not heard what I have said—why we cannot accept this provision, and that is why I want to test the opinion of the House.
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk acquisition warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 153, the Judicial Commissioner must give the Secretary of State written reasons for the refusal. (4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 153, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“and section (Approval of major modifications by Judicial Commissioners)(4) does not apply in relation to the refusal to approve the decision.”
Lord Butler of Brockwell
“Offence of breaching safeguards relating to examination of data
(1) A person commits an offence if—(a) the person selects for examination any communications data obtained under a bulk acquisition warrant,(b) the person knows or believes that the selection of that data for examination does not comply with a requirement imposed by section 160, and(c) the person deliberately selects that data for examination in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or (ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
Lord Paddick
Lord Paddick
My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to all the other amendments in this group, Amendments 203B to 203D, 204A to 204F, 205A, 208A to 208C, 209A, 210A and 210B, 215A, 217A and 218A. The sole effect of all the amendments would be to remove from the Bill the power to engage in bulk equipment interference.
This is a new power for the security and intelligence agencies to carry out equipment interference in bulk overseas. It is not a power they currently have and, according to David Anderson QC, it is not something that they currently do. As a result, David Anderson said in his review of bulk powers that the operational case for bulk equipment interference was “not yet proven”. The noble Lord, Lord Murphy, has said:
“The case for bulk equipment interference was less strong, but nevertheless still there”.—[Official Report, 7/9/2016; col. 1049.]
As the noble Lord, Lord Rosser, said in Committee, there is a difference between an operational case, let alone an unproven one, and proportionality or desirability. Quoting Mr Anderson, he pointed out that Mr Anderson assessed only the operational cases in his review, saying that the issues of proportionality and necessity were a matter for Parliament—which is why we are debating these amendments today.
We heard in earlier debates about the potentially broad scope of targeted equipment interference warrants. They can specify all equipment used by anyone in a particular organisation or more than one organisation involved in a single investigation or operation; all equipment used by members of a group with a common purpose or engaged in a particular activity; equipment in a particular location or more than one location for the purpose of a single investigation or operation; and equipment being used or that may be used for a particular activity or activities. That is all contained in Clause 108.
Although I realise that the primary focus of this House should be to protect the citizens of this country, I ask noble Lords to consider how they would feel if overseas Governments took our lead and enacted similar legislation that could be deployed against the UK and its citizens. UK citizens’ communications could be acquired through the use of bulk equipment interference warrants if they communicated with others based overseas.
In paragraph 7.37 of his report into bulk powers, David Anderson QC warns that considerable caution is required for a series of reasons. He concludes in paragraph 7.38:
“All this means that bulk EI will require, to an even greater extent than the other powers subject to review, the most rigorous scrutiny not only by the Secretary of State but by the Judicial Commissioners who must approve its use and by the IPC which will have oversight of its consequences”.
It is the nearest David Anderson comes to expressing an opinion on necessity and proportionality and, reading between the lines, it is clear that he is not keen.
For those reasons—and as the Intelligence and Security Committee initially recommended, although it was subsequently persuaded—we believe that bulk equipment interference warrants should be removed from the Bill. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, these amendments would remove the bulk equipment interference provisions from the Bill. Before I address the amendments specifically, it is worth pausing to reflect briefly on the importance of bulk powers in the round and the very significant steps that the Government have taken to ensure both that a robust operational case has been made for their necessity and that the most rigorous safeguards will apply to their use.
Extremely detailed and extensive scrutiny has been applied to bulk powers during the passage of the Bill, both in Parliament and, of course, by David Anderson QC as part of his bulk powers review. The conclusion of that review was that bulk powers,
“have a clear operational purpose”;
that they,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”;
and that where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or—crucially—slower”.
The Government have now tabled amendments giving full effect to the sole recommendation of that review, establishing in statute a Technology Advisory Panel to the Investigatory Powers Commissioner. We have also accepted an amendment tabled by the Intelligence and Security Committee which introduces a specific offence in the Bill to address deliberate misuse of the bulk powers. We have addressed wider concerns of that committee by adding very significant detail to the Bill on the safeguards that will regulate the use of these powers. I am grateful for the intensive scrutiny that has been applied to the bulk provisions in the Bill and believe that those provisions are all the stronger for it. There should now be no question that these powers are necessary and they are subject to world-leading safeguards.
Lord Paddick
I am grateful to the Minister for his comments. He kept saying that this power to conduct bulk equipment interference was absolutely essential to keeping us safe. What I do not understand is, first, why the very broad powers provided and the very broad range of targets that could be specified using targeted equipment interference could not be used in almost every case, rather than this power. Secondly, if bulk equipment interference is absolutely essential, if it could be authorised under existing legislation, why has it never been used by the security services? That is what David Anderson says.
As the Minister took the opportunity to talk about bulk powers in the round, perhaps I might get two things on the record. First, I cannot stress strongly enough that we are not opposed to the bulk acquisition of communications data generally. We are not opposed to bulk powers generally. We have specific issues with specific powers. Secondly, it has been suggested to me that I am standing here saying these things because it is my party policy. My party policy was decided by a working group that I chaired. I wrote the conclusions to that policy paper. I not only agree with the conclusions of that policy paper, I believe that they are absolutely the right conclusions. However, we have made the points that we wanted to make. They are on the record. I beg leave to withdraw the amendment.
(a) ceases to have effect (unless already cancelled), and(b) may not be renewed;and section 166(4) does not apply in relation to the refusal to approve the decision.”
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk equipment interference warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to the following matters— (a) whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary, and(b) in the case of a major modification adding or varying any description of conduct authorised by the warrant, whether the conduct authorised by the modification is proportionate to what is sought to be achieved by that conduct.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 173, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 173, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“and section (Approval of major modifications by Judicial Commissioners)(4) does not apply in relation to the refusal to approve the decision.”
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“( ) For the purposes of subsection (3)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the material for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
“(3A) Subsection (3B) applies if, in a case where protected material obtained under a bulk equipment interference warrant is to be selected for examination—(a) the selection of the material for examination meets any of the selection conditions in section 179(3)(a) to (c),(b) the purpose, or one of the purposes, of using the criteria to be used for the selection of the material for examination (“the relevant criteria”) is to identify communications or other items of information that, if they were not communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(c) the person to whom the warrant is addressed considers that the communications or other items of information (“the targeted communications or other items of information”) are likely to be communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose. (3B) The material may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(3C) A senior official may give an approval under subsection (3B) only if the official considers that the targeted communications or other items of information are likely to be communications made or (as the case may be) other items of information created or held with the intention of furthering a criminal purpose.”
“(4A) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4B) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (4A), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4C) Each of the following is an “affected party” for the purposes of subsection (4B)—(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”
“Additional safeguard for confidential journalistic material
Where—(a) material obtained under a bulk equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and(b) it is material containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a bulk equipment interference warrant, see section 177.)”
Lord Butler of Brockwell
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any material obtained under a bulk equipment interference warrant, (b) the person knows or believes that the selection of that material does not comply with a requirement imposed by section 179 or 180, and(c) the person deliberately selects that material in breach of that requirement.(2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Lord Keen of Elie
“(A1) An intelligence service may not retain, or retain and examine, a bulk personal dataset in reliance on a class BPD warrant if the head of the intelligence service considers that the bulk personal dataset consists of, or includes, protected data.For the meaning of “protected data”, see section (Meaning of “protected data”).”
Lord Keen of Elie
My Lords, this group contains a number of amendments specific to Part 7 of the Bill, which covers bulk personal datasets. I first turn to government Amendments 219, 220, 224, 226, 227, 229, 230, 237, 238, 239, 240 and 265, 266 and 267.
In David Anderson QC’s review of bulk powers he stated:
“It has come to my attention that some”,
bulk personal datasets,
“may contain material that is comparable to the content of communications, and in rare cases even material subject to”,
legal professional privilege. He continued:
“In the light of these facts I have already recommended to the Home Office that consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
We welcome David Anderson’s review and the attention he has given to these matters. I stress that it is unlikely to be the case that many bulk personal datasets will contain this sort of material, but in those instances where they do, it is right that it is protected appropriately. These amendments ensure that the Bill provides such protection.
Amendment 219 explains that an intelligence agency may not use a class BPD warrant to,
“retain, or retain and examine, a bulk personal dataset”,
that consists of or includes “protected data”. Amendment 220 would insert a new clause which defines what protected data are in this context. In essence, protected data are the same class of data as “content” in the telecommunications context or “protected material” in the equipment interference context. Protected data in a bulk personal dataset may include, for example, the contents of letters, emails or other documents. They do not include identifying data—for example, data that may help to identify persons, systems, services, locations or events—nor do they include systems data, which are data that enable or facilitate the functioning of any system or service.
Lord Keen of Elie
“Meaning of “protected data”
(1) In this Part, “protected data” means any data contained in a bulk personal dataset other than data which is one or more of the following—(a) systems data;(b) data which falls within subsection (2);(c) data which is not private information. (2) The data falling within this subsection is identifying data which—(a) is contained in the bulk personal dataset,(b) is capable of being logically separated from the bulk personal dataset, and(c) if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning (if any) of any of the data which would remain in the bulk personal dataset or of the bulk personal dataset itself, disregarding any meaning arising from the existence of that data or (as the case may be) the existence of the bulk personal dataset or from any data relating to that fact.(3) For the meaning of “systems data” see section 239(4).(4) In this section, “private information” includes information relating to a person’s private or family life.”
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
“Protected data: power to impose conditions
Where the Secretary of State decides to issue a specific BPD warrant, the Secretary of State may impose conditions which must be satisfied before protected data retained in reliance on the warrant may be selected for examination on the basis of criteria which are referable to an individual known to be in the British Islands at the time of the selection.”
“and section 190(4) does not apply in relation to the refusal to approve the decision.”
(d) where the Secretary of State has imposed conditions under section (Protected data: power to impose conditions), specify those conditions.”
“( ) Section (Protected data: power to impose conditions) applies in relation to the renewal of a specific BPD warrant as it applies in relation to the issue of such a warrant (whether or not any conditions have previously been imposed in relation to the warrant under that section).”
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a class BPD warrant or a specific BPD warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy). (3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 197, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 197, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“and section (Approval of major modifications by Judicial Commissioners)(4) does not apply in relation to the refusal to approve the decision.”
“( ) In deciding whether to give approval for the purposes of subsection (3)(b), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).”
“( ) The Secretary of State must also ensure, in relation to every specific BPD warrant which specifies conditions imposed under section (Protected data: power to impose conditions), that arrangements are in force for securing that any selection for examination of protected data on the basis of criteria which are referable to an individual known to be in the British Islands at the time of the selection is in accordance with the conditions specified in the warrant.”
“Additional safeguards for items subject to legal privilege: examination
(1) Subsections (2) and (3) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination—(a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify any items subject to legal privilege, or(b) the use of the relevant criteria is likely to identify such items.(2) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(3) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(4) The Secretary of State may give approval for the purposes of subsection (2) only with the approval of a Judicial Commissioner.(5) Approval may be given under subsection (2) or (3) only if—(a) the Secretary of State or (as the case may be) the senior official considers that the arrangements mentioned in section 188(6)(d) include specific arrangements in respect of items subject to legal privilege, and(b) where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official considers that there are exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria.(6) In deciding whether to give an approval under subsection (2) or (3) in a case where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.(7) For the purposes of subsection (5)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the data for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.(8) In deciding whether to give approval for the purposes of subsection (4), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(9) Subsections (10) and (11) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination— (a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify data that, if the data or any underlying material were not created or held with the intention of furthering a criminal purpose, would be an item subject to legal privilege, and(b) the person to whom the warrant is addressed considers that the data (“the targeted data”) or any underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(10) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(11) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(12) Approval may be given under subsection (10) or (11) only if the Secretary of State or (as the case may be) the senior official considers that the targeted data or the underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(13) In this section, “underlying material”, in relation to data retained in reliance on a specific BPD warrant, means any communications or other items of information from which the data was produced.”
“Additional safeguards for items subject to legal privilege: retention following examination
(1) Where an item subject to legal privilege is retained following its examination in reliance on a specific BPD warrant, for purposes other than the destruction of the item, the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(2) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(3) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (2), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4) Each of the following is an “affected party” for the purposes of subsection (3)—(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”
Lord Janvrin
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any data contained in a bulk personal dataset retained in reliance on a class BPD warrant or a specific BPD warrant, (b) the person knows or believes that the selection of that data is in breach of a requirement specified in subsection (2), and(c) the person deliberately selects that data in breach of that requirement.(2) The requirements specified in this subsection are that any selection for examination of the data—(a) is carried out only for the specified purposes (see subsection (3)),(b) is necessary and proportionate, and(c) if the data is protected data, satisfies any conditions imposed under section (Protected data: power to impose conditions).(3) The selection for examination of the data is carried out only for the specified purposes if the data is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 194.In this subsection, “specified in the warrant” means specified in the warrant at the time of the selection of the data for examination.(4) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(5) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”
“( ) In deciding whether to give approval for the purposes of subsection (7), the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”
Lord Keen of Elie
“( ) In sub-paragraph (1) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”
Lord Keen of Elie
My Lords, I will now address government amendments relating to definitions and extent, and consequential provisions. They aim to ensure consistency within the Bill and with other statutes. Clause 246 contains the usual power to make amendments to other legislation consequential on the provisions of the Bill. Schedule 8 contains a similar power to make amendments consequential on the provisions in that schedule. As currently drafted, the powers would permit the amendment of legislation passed at any time in future.
The power to make consequential amendments to future enactments is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by the Bill—such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills, or the Investigatory Powers Bill, may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.
In its recent report on the powers in the Bill, the Delegated Powers and Regulatory Reform Committee recommended that the powers should be restricted to the amending of future enactments passed or made during the current Session. The Government indicated in Committee in this House that they intended to accept this recommendation. Amendments 243 and 281 give effect to the committee’s recommendation, and I commend them to the House.
Amendments 260 and 271 are technical amendments that remove the definition of “person” from the Bill. The Bill’s definition of “person” in Clause 239 was carried over from the Regulation of Investigatory Powers Act 2000. It does not apply in relation to Parts 2 or 5 of the Bill, and we have concluded that it is not needed in respect of the other parts. The Interpretation Act definition will apply throughout the Bill. The definition of “person” in Clause 239 is therefore not required and Amendments 260 and 271 simply remove it.
Amendment 268 provides definitions of “journalistic material” and “confidential journalistic material”. It makes it clear where the additional protections provided for in Parts 2 and 5 of the Bill, which we debated here on the first day of Report, will apply. It is of course the case that the Government are seeking to protect legitimate journalism while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. This seeks to prevent persons such as those in the media wing of Daesh attracting a safeguard intended for legitimate journalists.
Amendments 280 and 286 clarify the drafting in relation to the definition of a postal operator, and to consequential amendments being made to RIPA. These drafting amendments make no changes to the effect of the provisions. Amendments 282, 283, 284 and 292 make minor amendments to the Security Service Act 1989, Intelligence Services Act 1994, Police Act 1997 and Anti-terrorism, Crime and Security Act 2001 in consequence of the updated targeted-interception provisions in Part 2 of this Bill.
Amendment 289 relates to the IPC’s duties to report to Scottish Ministers. Where the Police Act 1997 requires the IPC to report certain matters to Scottish Ministers, this amendment provides that the IPC can do so at any time, as opposed to only in its annual report. Amendment 285 is a minor and consequential amendment. As we have discussed previously, the Bill provides for an interception warrant to be obtained that has the main purpose of obtaining secondary data from communications, rather than intercepting communications content. This amendment simply amends RIPA to make it clear that a notice served under Part 3 of that Act can relate to an interception warrant that has the main purpose only of obtaining secondary data.
Amendment 287 ensures that the provisions of RIPA will make proper reference to powers provided for in this Bill, alongside existing legislative references. It will make two key changes to RIPA. First, it inserts a reference in Section 48 of RIPA to the equipment interference powers provided for in the Bill, which will sit alongside existing references to property interference powers contained in the Intelligence Services Act 1994 and the Police Act 1997. This amendment makes it clear that references to surveillance in Part 2 of RIPA do not include equipment interference activity which will be authorised under the Bill when it becomes the Investigatory Powers Act. This minor amendment will simply ensure consistency with the existing drafting of RIPA.
Secondly, and similarly, the amendment inserts a reference to equipment interference warrants into Schedule 2 to RIPA, which will sit alongside an existing reference to property interference authorisations under Part 3 of the Police Act 1997. Schedule 2 to RIPA relates to the issuing of a Section 49 notice under Part 3 of RIPA. A Section 49 notice allows relevant authorities to require a person to put protected electronic information into an “intelligible form”. In the future, acquisitions of these types of data will be done using equipment interference powers provided for in the Bill, so it is essential that law enforcement agencies continue to be able to use Section 49 notices with the new statutory framework. This amendment ensures that, in future, a law enforcement chief or an appropriate delegate will retain the same powers they currently hold in relation to protected electronic information obtained under existing legislation.
Amendment 288 is a minor, technical amendment that corrects a drafting error in Schedule 10. Paragraph 62 of Schedule 10 amends the Regulation of Investigatory Powers (Scotland) Act 2000 to ensure that Scottish Ministers can issue a code of practice in relation to equipment interference. This amendment clarifies that any such code of practice will be limited to targeted equipment interference so far as it relates to the police service or the Police Investigations and Review Commissioner, and will not relate to bulk equipment interference, a power which is not authorised by Scottish Ministers.
Finally, Amendments 296 to 300 are technical amendments which simply clarify the extent of the provisions of the Bill in relation to the Crown dependencies. They make two key changes. The first is being made following a request from the Isle of Man Government and will enable the extension of any of the provisions of the Bill, with or without modification, to the Isle of Man. This could assist the Isle of Man in ensuring that its legislative framework for law enforcement can be fully up to date and future-proof, enabling greater consistency with UK law.
The second of these changes will provide a more limited extension of provision for the Channel Islands, simply ensuring that any amendments made by the Bill to the provisions of another Act, such as the consequential amendments detailed at Schedule 10, may be extended to the Channel Islands by Order in Council, if that Act contains such a power. Any extension by Order in Council would of course only take place in consultation with the Governments of Jersey and Guernsey, and with their consent, and they would retain the option to make those amendments in domestic legislation instead. These technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.
Lord Low of Dalston (CB)
My Lords, I shall speak to Amendments 294 and 295, tabled by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble and learned Lords, Lord Falconer and Lord Wallace. The noble Baronesses very much regret that they cannot be present in the House today, and they have asked me to speak to their amendments. I will be brief, as I understand that, without prejudice to the Government’s ultimate position, the Minister is not seeking to divide the House, and we are all most grateful to him for that.
The amendments would have no impact on the security measures in the Bill, nor would they affect the other measures in the Bill in any way. Their sole purpose is to bring into force automatically after Royal Assent Clause 8 and the new clause that was added to the Bill by this House last week by a large majority.
The amendments would deliver cost protections in hacking cases, which Section 40 of the Crime and Courts Act 2013 was enacted to provide for all publication torts. Section 40 is a key part of the Leveson recommendations that the Government promised to implement but has not been commenced. Non-commencement frustrates the will of Parliament and is a breach of the 2013 cross-party agreement. The commencement of these clauses automatically after Royal Assent is necessary to ensure that the device of non-commencement is not employed again on the amendments that the House passed last week. For these reasons, I commend Amendments 294 and 295 to the House.
Lord Keen of Elie
My Lords, we discussed the substantive points on this issue on day one of Report. We consider these amendments consequential to the ones we discussed then. Although the Government’s position on the substantive issue remains as we set out last week, we are not opposing these amendments.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall also speak to Amendments 245 and 246. These amendments take us back to the question of the reimbursement of the operators’ costs. We have heard frequent assurances about the operators’ compliance costs and that they are to be met, but the words of the Bill do not quite live up to some of the narrative.
Our three amendments cover two alternatives; they would not all be possible. Amendments 244 and 245 would provide that arrangements were in force to secure for the operators the full amount of all relevant costs—“relevant costs” are defined later in the clause—not an appropriate contribution. As Clause 225(1) is framed, the Secretary of State must ensure,
“an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate”.
With these two amendments, we seek to take out that element of discretion.
Amendment 246 would provide that if the contribution was not an equal amount, there should be regulations regarding the basis of how the contribution is calculated. Our amendments provide that the Secretary of State should lay regulations to that effect. It will be obvious to noble Lords that our reasons are transparency, equality between operators and the opportunity to consider the criteria—the factors, if you like—applied in calculating the contribution. In other words, our intention is scrutiny, using the opportunity that regulations give for debate of their content.
We have debated this matter on a number of occasions, and the Minister will be well aware of our concern. This is an attempt, at this almost last stage, to pin down just how the contribution will be made. I beg to move.
Earl Howe
My Lords, Amendments 244 and 245 are intended to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under the Bill. As the noble Baroness knows, this matter has been considered at length both in this House and in the Commons. It is important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed on them aimed at protecting national security or combating crime. Indeed, the Government have a long history of working with service providers on these matters and we have been absolutely clear that we are committed to cost recovery.
I once again take the opportunity to reaffirm to the House a point that both my right honourable friend the former Security Minister and my right honourable friend the Prime Minister made very clear in the other place and that I made in Committee: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records.
The question that the House needs to consider, I submit, is whether it is appropriate for the Parliament of today to tie the hands of future Governments on this issue. That does not mean that we take our commitment lightly, or that future Governments will necessarily or lightly change course. Indeed, it is unlikely that any change in policy will ever take place. For example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, and so has survived Governments of three different colours, or combinations of colours.
The Bill adds further safeguards, requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and means that the provider could seek a review of any variation to the notice which affected the level of contribution.
Another question that I hope the House will consider is whether a communications service provider should be able to derive commercial benefit as a result of the obligations imposed on them in relation to the other powers under the Bill. Sometimes, it may be necessary for a communications service provider to upgrade part of its infrastructure to comply with an obligation imposed on it under a technical capability notice. As the communications service providers may be able to derive some business benefit from that upgrade, it is right that the legislation allows for the contribution to the costs to be appropriate to the circumstances.
Some noble Lords have expressed concern about the term “reasonable costs” and asked what it means. I hope I can provide some reassurance on that point. Significant public funding is made available to companies to ensure that they can provide assistance to public authorities in tackling terrorism, crime and other threats. As costs are reimbursed from public funds, the codes of practice make very clear that companies should take value for money into account when procuring, operating and maintaining the infrastructure required to comply with a notice. Were a company to select a solution that did not deliver best value for public funds, I am sure noble Lords would agree that it is absolutely right that the Government would need to consider carefully whether those costs were reasonable and therefore whether it was appropriate to reimburse the company in full.
The noble Baroness’s Amendment 246 acknowledges that there may be circumstances where it is appropriate for a communications service provider to be reimbursed less than its full costs. However, we do not think her proposed regulations provide the required flexibility. As I just explained, communications service providers may receive some business benefit from the changes made to their systems and it is appropriate that the Government are able to discuss these matters with them on a case-by-case basis, rather than be bound by general regulations. Indeed, while communications service providers would welcome an amendment to require 100% cost recovery in all cases, I suggest that they are unlikely to welcome regulations which enshrine in law circumstances where they would not receive full reimbursement.
I hope I have allayed any concerns about the Government’s position on costs and accordingly invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, until the last two or three sentences, I thought the noble Earl had made a much better case for regulations than I did. I am a little worried about his argument that regulations cannot provide for flexibility. Flexibility is not necessarily bad, but how it is exercised should be transparent, and that is what my amendment is driving at.
The noble Earl started his remarks by saying that the operators should not be “unduly disadvantaged”, and it is those words which caveat the commitment that has troubled us throughout our debates. We have tried, particularly with the third amendment, to meet the points made by the Government. I will obviously not pursue this any further; we have reached the end of the road. I have no doubt that someone will draw to our attention any problem in practice in future. I beg leave to withdraw the amendment.
“( ) In a case where—(a) a national security notice would require the taking of any steps, and(b) in the absence of such a notice requiring the taking of those steps, the taking of those steps would be lawful only if a warrant or authorisation under a relevant enactment had been obtained,the notice may require the taking of those steps only if such a warrant or authorisation has been obtained.”
Earl Howe
My Lords, I shall speak also to the other government amendments. Government Amendments 247 to 250 clarify the activity that can be authorised by a national security notice to provide greater reassurance to telecommunications operators to whom such a notice may be given. These amendments also respond to concerns raised in the Commons that the detail set out in the draft code of practice was clearer than the provisions in the Bill.
Clause 228 states that the Secretary of State may give such a notice to a telecommunications operator in the UK, requiring the taking of such specified steps as are considered necessary in the interests of national security. The type of support that may be required includes the provision of services or facilities which would help the intelligence agencies to safeguard the security of their personnel and operations, or provide assistance with an emergency as defined in Section 1 of the Civil Contingencies Act 2004.
Amendment 248 makes it clear that a national security notice cannot be used for the primary purpose of acquiring communications or data. The proposed amendments further clarify that, in any circumstance where the taking of a step set out in the notice would involve the acquisition of private data, any interference with privacy must be authorised by an appropriate warrant or other authorisation under the Bill, or another relevant statute, where it is available. Therefore, a notice, of itself, cannot authorise as its primary purpose an intrusion into an individual’s privacy.
I should like to emphasise here that this power can be exercised only if the Secretary of State and a judicial commissioner are satisfied that the conduct required by a notice is necessary and proportionate to what is sought to be achieved.
In addition, Amendment 250 makes it clear that any conduct required under a notice is lawful for all purposes, providing reassurance for telecommunications operators that, when conduct is carried out in accordance with the requirements of a notice, the operator will not risk being found to be in breach of any other legal requirement.
I hope that these amendments reassure noble Lords that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation, but neither could it prohibit the acquisition of private data when such conduct has been appropriately authorised.
( ) In this section “relevant enactment” means”
“( ) Conduct required by a national security notice is to be treated as lawful for all purposes (to the extent that it would not otherwise be so treated).”
Lord Paddick
“(c) specifying the distinct service or product to which the notice applies”
Lord Paddick
My Lords, Amendments 250A and 251A, in my name and that of my noble friend Lady Hamwee, relate to technical capability notices through which the Secretary of State can require an operator to have a capacity to provide any assistance necessary that might be required to give effect to the powers under the Bill. We have received representations on behalf of operators asking that those notices should be specific about the distinct service or product to which the notice applies, rather than a blanket, “You must have the capability to do anything we may require you to do under the powers contained in legislation”. Amendment 250A is intended to have that effect, while Amendment 251A tries to limit the scope of technical capability notices. The power to issue a technical capability notice applies to any provider capable of being considered a telecommunications provider under the very broad definitions in the Bill. It would not be proportionate or necessary for this power to be so broad. The amendment aims to narrow the definition to exclude services that are not primarily communications services, even when there may be a communications element. Whether the wording of our amendment achieves that is a matter for debate, but that is what is intended. I beg to move.
Lord Paddick
I can certainly tell the noble Lord that Yahoo! was one of the operators, but I do not have a list to hand.
Earl Howe
My Lords, Amendment 250A would define a technical capability notice as,
“specifying the distinct service or product to which the notice applies”.
I do not believe this amendment is necessary. The safeguards that apply to the giving of a notice under the Bill already ensure that a technical capability notice cannot be of a generic nature. I will not go into detail here about the lengthy process that must be undertaken before a notice can be given; we have discussed them at length previously and we will undoubtedly review them again shortly during our discussions on encryption. But it might be helpful for me to summarise.
Before giving a notice, the Secretary of State must consult the company concerned. This process will ensure that the company is fully aware of which services the notice applies to. The decision to issue a notice must be approved by the Secretary of State and a judicial commissioner. The obligations set out in the notice must be clear so that the Secretary of State and judicial commissioner can take a view as to the necessity and proportionality of the conduct required. As I have already mentioned, we propose a similar role for the judicial commissioner when a notice is varied. The operator may raise any concerns about the requirements to be set out in the notice, including any lack of clarity regarding their scope, during the consultation process. The operator may also seek a formal review of their obligations, as provided for in Clause 233. The safeguards which apply to the giving of a notice have been strengthened during the Bill’s passage through Parliament, and will ensure that the regime provided for under the Bill will be more targeted than that under existing legislation. It is for these reasons that I consider the amendment unnecessary.
Amendment 251A seeks to narrow the category of operators to whom a technical capability notice could be given. This change would exclude operators that provide services that have a communications element but are not primarily a communication service. This amendment, which has already been discussed in the Commons, is also unnecessary and, in my view, risks dangerously limiting the capabilities of law enforcement and the security and intelligence agencies. We are aware that the manner in which criminals and terrorists communicate is diversifying, as they attempt to find new ways to evade detection. We cannot be in a situation where terrorists, paedophiles and other criminals can use technology to escape justice. As David Anderson said,
“no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world”.
It is important that the Government can continue to impose obligations relating to technical capabilities on a range of operators to ensure that law enforcement and the security and intelligence agencies can access, in a timely manner, communications of criminals and terrorists using less conventional services, such as those offered by gaming service providers and online marketplaces. It may be appropriate to exclude certain categories of operators from obligations under this clause, such as small businesses, but it is our intention to use secondary legislation to do so. It would not be appropriate to impose blanket exemptions on services that have a communications element but are primarily not a communication service, since to do so would make it clear to terrorists and criminals that communications over such systems could not be monitored.
For all the reasons I have set out, I hope that the noble Lord, Lord Paddick, will feel able to withdraw his amendment.
Lord Beith (LD)
Before the noble Earl sits down, I refer to a point which at least needs to be borne in mind in drafting regulations. In most circumstances, if the Government impose upon a business an obligation of some kind, and behave totally unreasonably in doing so—or the business thinks that the Government are behaving unreasonably—the matter will end up in public discussion and the company has the weapon of saying to the public at large, “The Government are asking us to do something unreasonable”. That must not happen in these circumstances because clearly secrecy must be maintained. Therefore, the company is in a weaker position than it would be in the normal exchange between government and business. I hope that Ministers will recognise that fact.
Earl Howe
With the leave of the House, I am grateful to the noble Lord for raising that point, which I think will come up in the next group of amendments when we discuss encryption because it is centre stage in that issue. He is absolutely right and I hope that I can assuage his concerns in the next debate.
Lord Paddick
I am very grateful to the Minister, particularly for his explanation around Amendment 251A. I completely accept that the whole range of ways in which people can communicate potentially needs to be covered. I am encouraged by the fact that there may be some exceptions in secondary legislation. It is unfortunate that we do not have sight of that before I withdraw this amendment but life is like that.
Bearing in mind the fact that the Minister did not articulate any downside to Amendment 250A, I wonder why the Government will not accept it, given that it appears not to limit the Government’s action in any way. However, at this stage, I beg leave to withdraw the amendment.
Lord Harris of Haringey
“( ) For the purposes of this section, “electronic protection” does not include electronic protection applied directly by the communications device or operating system of the end user which has the effect of encrypting the communications data in transit such that the relevant telecommunications operator does not have a means to access the associated communications data or content.”
Lord Harris of Haringey
My Lords, noble Lords who have followed my limited contributions to the Bill will know that I take a fairly robust approach in support of what the Government seek to do in it. Indeed, they may even be slightly perplexed that I have tabled this amendment, which is supported by the Liberal Democrat Front Bench, given the slightly testy exchanges that have occurred once or twice during the passage of the Bill. However, my philosophy throughout has always been clear—namely, that by and large this Bill is needed to update current legislation and to protect the public. However, all the measures have to be tested in terms of the balance that they strike between protecting the public and their potential invasion of privacy. We have debated that issue but in this case the disbenefits I am concerned about are the extent to which what the Government may be trying to do—the Minister will no doubt explain what that is in more detail in a few minutes—under the Bill as drafted will weaken the security that people would otherwise have.
The Bill provides the Home Secretary with the power to require a communications provider to install some sort of technical capability to provide data on request, including where those data would otherwise be encrypted and are therefore not so easily available. The Bill includes an impressive array of safeguards. The Home Secretary is required to apply a series of tests before they make a decision to serve an order on a communications provider, and a process of consultation and discussion has to go forward. Those measures are all designed to ensure that not only is the Home Secretary properly informed in making that judgment but using the power is practical and reasonable. Indeed, the Bill emphasises the importance of the test of something being reasonably practical and technically feasible. I have asked for an explanation of the precise distinction between reasonably practical and technically feasible. I accept that there may be a distinction.
A whole series of tests applies under those circumstances but we do not know how those tests might be applied in future or what the Home Secretary might decide. Therefore, we cannot know how a future Home Secretary, or the present Home Secretary, would interpret what is and is not practicable and reasonable. In particular, we face an ambiguity—at least I think there is an ambiguity here—over what it will mean for end-to-end encrypted services. End-to-end encrypted services allow an end-user to send a message via a particular service which can be opened and read only by the person to whom it is sent. That is an important reassurance which we would all like to have in terms of our private communications. The company that conveys that message to the other person—the company in the middle—has no ability to see that message. The communications provider has provided that as a service because it is believed that that is what customers want.
Not all communications providers do that. Some provide a service where it is clear—it says so on the tin—that they will have the option to be aware of what is in the message because they use that to sell advertising. However, not all communications providers operate on that basis. The purpose of that encryption arrangement is to ensure that the data are protected by means of encryption against outsiders looking at them. The encryption key is held only by the person who sends the message and the person who receives it. Nobody else in between has that capacity. The potential implication of that is that the communications provider cannot find a way to discover the content of such a message, even if it wanted to and even if required to do so by the Government.
Lord Paddick
My Lords, I will speak to our Amendments 252 to 254 and the other amendments in this group. To save the noble Lord, Lord Rooker, having to get to his feet, this one is from Apple.
As the noble Lord, Lord Harris of Haringey, just outlined, it is essential that end-to-end encryption is not compromised by technical capability notices. I anticipate that the Minister might say that Clause 231(3)(c) covers this in that it would not be technically feasible for the operator to remove electronic protection of this nature, but we support this amendment and believe that it needs to be explicit in the Bill. However, we do not believe that this amendment covers other forms of encryption. Our Amendment 252 is intended to protect UK operators from the real or perceived disadvantage they would be placed under if technical capability notices required them to make modifications that would make their product or service less secure than overseas operators, who may not be subject to or may refuse to comply with a similar technical capability notice.
Similarly, Amendment 253 is intended to prevent a technical capability notice stopping UK operators from innovating to improve the levels of security or encryption provided by their products and services in a way that would disadvantage them against overseas operators, which may not be subject to or refuse to comply with a similar technical capability notice.
Amendment 254 is intended to deal with the criticism of our amendment in Committee by the Minister, who said that he believed that it,
“would remove the Government’s ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies”.—[Official Report, 13/7/16; cols. 272-73.]
This new amendment makes it clear that technical assistance can be given to enable interpretation and deciphering provided that it does not open the door to unauthorised access to encrypted materials by criminals, terrorists and foreign spies—essentially, what the noble Lord, Lord Harris, just said.
Amendment 252A, in the name of my noble friend Lord Strasburger, is an attempt to combine all the other amendments in this group into a much better-worded amendment. I look forward to hearing from him why this might be the case.
Lord Strasburger (LD)
My Lords, I shall rise to that opportunity. Amendment 251, in the name of the noble Lord, Lord Harris, and my noble friends Lord Paddick and Lady Hamwee, addresses one particular kind of encryption—namely end-to-end encryption—and it is very good as far as it goes, which is end-to-end encryption. My own Amendment 252A is also in this group and is complementary to Amendment 251. It is, in my humble opinion, a neater way of dealing with encryption that is not end-to-end encrypted than the combination of the other amendments in this group: Amendments 252, 253 and 254. It is an alternative to them.
We have been around the block many times on the subject of encryption in the context of Clauses 229 to 231. It has come up several times in our debates on the Bill, as well as in questions in this House and in the Joint Committee on the Bill. Yet we are no closer to a clear and unambiguous understanding of the Government’s position on this vital issue, as the noble Lord, Lord Harris, has so eloquently said.
It might help if we start from common ground. I doubt that any noble Lord, myself included, would deny the authorities the option of requiring an operator to decrypt a communication where: the operator already possesses the capability to do so; the sender or receiver of the communication is genuinely suspected of committing or planning a serious crime; and the appropriate process has been followed and the action has been judged necessary and proportionate by a judicial commissioner. I do not think that anybody would argue about that.
I believe there is more common ground. Ministers have repeatedly confirmed that the Government fully accept that many uses of the internet that are now an essential part of everyday life, both for individuals and for large organisations, cannot possibly continue to happen without the security provided by unbreakable encryption.
If we take those two points as read, we are left with two questions about what happens if the operator is not able to decrypt the communication. The first is: should the Secretary of State be able to force an operator to redesign its product so that in future its encryption has a weakness that permits the operator, or perhaps GCHQ, to read a suspect’s messages? The other question is: should the Secretary of State have the power to prevent an operator introducing new or modified encryption services which neither the authorities nor the operator can break? The answer to both those questions is an unequivocal, “No, the Secretary of State should not have those powers”, and noble Lords will be hard pressed to find a single cryptography specialist who has a different view. If the Government concur, as I hope they do, they should have no problem accepting Amendments 251 and 252A, which would remove the ambiguity in the current drafting.
Lord Rooker
My Lords, if I could be convinced that the same rules applied everywhere on the globe—because we are talking about a global function—in respect of the rule of law, freedom, transparency and privacy protection, then I might have a bit of sympathy with the business operators, as we will call them.
I had the privilege of being among those serving on the RUSI panel. We had a discussion with the providers, but they did not all want to come and sit round the table at the same time—I recall two or three sessions—because they are competitors. We put it to them—it was not original; it had come up elsewhere—that not one of these companies, whether Apple, Google, Facebook, Twitter, Yahoo or Microsoft, would ever have been able to start what is now their global business in countries such as Russia, Iran and China. Yet they have become global and make enormous profits, although I will not go into the issue of them paying their taxes.
These providers hide behind the fact that the countries where they are able to start and function have the rule of law and are democracies where you can challenge Governments in the courts and get redress, yet they then go and operate in countries where they cannot do that. If they all said, “When we operate in China, we’re going to produce all our phones fully encrypted, exactly as we do for everybody else. The Chinese Government are allowing us to close end to end. They don’t want to know what their citizens are saying”, then fine, but I do not believe that that is the case, and that is part of the problem.
My noble friend Lord Harris touched on the issue of other Governments, but we can legislate only for the UK. I fully understand that, yet half of an email sent from my office upstairs to a colleague here might be split and end up travelling through the rest of Europe or America or half-way round the world. That is how the system works. Just because you are emailing someone in this country from within this country, you cannot guarantee that the entire message will stay in this country while it is being whizzed round the world. The system does not work as I originally thought it did. So we can legislate only for this country and messages get split up around the world.
The fact is that the business plans and business operations of these companies depend on open, transparent and democratic countries with the rule of law, yet they are willing to work in countries where there is no rule of law and where there are corrupt regimes, such as in Russia, or undemocratic regimes, as in China. These are countries with huge populations and the companies can do business there according to a different business plan from the one that applies here. From the point of view of those who are there to protect us, that has to lead to a suspicion that at some point we might need a bit more information than we have and that we might need to ask for that to be provided.
I take second place to no one on the protection of privacy, but the fact is that you cannot discuss this issue just in the context of the UK or Europe; it is global, and the rules do not apply equally across the globe. If we take that on board, I think we ought to have a fair degree of sympathy with how the Government will operate these measures.
I have listened to other people and have read more about this matter since finishing our work on the RUSI panel, and the fact is that there is a great reluctance to have these powers. In a democracy there is an incredible reluctance for private information to be treated in this way, but at the end of the day there will be proportionality and our people will be tested on the need for these powers. One of the raisons d’être of the Bill is to put in second and third checks, so those with the powers will be watched and the watchers will be watched, and that is how we can give the public confidence. I do not think that we ought to write the Bill to suit the business operators’ original business plans, because they are not implementing them on an equal basis across the globe. Therefore, I hope that the Government will reject these amendments.
Lord Harris of Haringey
Before my noble friend sits down, to be honest I think that he has slightly misunderstood the point that has been made. I am not putting this forward because of the business models of particular companies; I am proposing it because of the inherent weakness that could conceivably be created. His argument, if I understood what he just said, is that because Russia or China may require, or may force because the business there is so valuable, a communications service provider to put in one of these back doors, therefore we need to have the same facility. The point is that, because it is a global provision, if a back door is built in—because Russia or China or wherever else has demanded it—then a technical capability notice would operate because the operator would have that existing facility. That is precisely the circumstance in which a technical capability notice could be served. This amendment seeks to exclude a requirement from our Government that it should be created at our behest, which other people would then use.
Lord Rooker
I take on board what my noble friend is saying. I fully accept the distinction he makes but, basically, although I am a customer of some of these companies, I do not trust them—they will tell us that this has been built in and is secure, but do deals with those other regimes.
Lord Evans of Weardale (CB)
My Lords, there have not been very many points in the course of this legislation on which I have agreed with the noble Lord, Lord Strasburger, but on this point I do. Amendment 252A raises a very interesting and important point.
Although I am absolutely in favour, as you would imagine, of the Government having the opportunity to access the communications of anybody who is a threat to us—due to terrorism, criminal activities or anything of that sort—there is a competing national security issue here of this country having effective cybersecurity. We have seen the way in which hostile Governments have been seeking to intervene in the American elections, and we have seen all sorts of attempts by hostile states, criminal groups and others to use cyber weaknesses to take forward hostile agendas. Therefore, there is a genuine national security interest in ensuring that, as far as we can, our citizens can communicate securely and privately when they are not going about mischievous business.
The idea that we should take into consideration the requirement not to place non-targeted customers or others at additional security risk is an entirely legitimate one, and I am very interested to hear how the Minister would want to interpret this. We have competing national security issues here and it is a point well made.
Baroness Hayter of Kentish Town
My Lords, we have had some rather good discussions with the tech companies. In Committee, we put in some of the amendments that they suggested to us, and some of the government amendments we have been dealing with over the past few days reflect that. I thank the tech companies for their very responsible attitude in continuing discussions with the Government over this period. Certainly with us they have been open, flexible and fairly straight as to what is possible and what the dangers are for them—for example, and as we have discussed, whether a weakness in end-to-end encryption could actually undermine the security that banks and others rely on in their systems—and for their clients, public confidence and national security. The companies recognise that they have a duty of care and loyalty to their customers, while fully respecting the law of the land in which they operate and the legal demands on their staff, wherever they are located.
In their discussions with us, companies have sought clarity that they will not be asked, effectively, to create a new system that would breach end-to-end encryption. They need this clarity for their shareholders and customers’ peace of mind because the reality is that they could never be forced to create a new computer program to hack their own security. I for one cannot imagine the noble Earl, Lord Howe, or anyone else standing over a hapless computer programmer shouting, “Break into it!”, if that company did not want to do it or the computer genius was on a go-slow that day. The idea that you could force somebody to create a program that the company and the employee did not want to is probably not possible.
Given that, the reality is that the things the Government want to ask will happen only when there is a good working understanding between the security services and the company. Therefore, if the tech companies want this clarity as set out in Amendment 251—as we know they do—our interest is to hear from the Minister just what the obstacles are to giving them the clarity that they seek.
Earl Howe
My Lords, I hope that the House will allow me to speak at somewhat greater length than usual in responding to these amendments. I recognise the concern that lies behind them and I also recognise that, although we debated the Bill’s provisions on encryption in Committee, there is a need to correct a number of misconceptions that have been expressed and to set out the reality of the Government’s position on encryption. I would also like to make clear what the provisions in the Bill do and, crucially, what they do not do, and to explain why these provisions are so important to our law enforcement and intelligence agencies. I hope that by, setting this out, I can reassure noble Lords that the amendments are not necessary.
As we have made clear before, the Government recognise the importance of encryption. It keeps people’s personal data and intellectual property secure and ensures safe online commerce. The Government work closely with industry and businesses to improve their cybersecurity. For example, GCHQ plays a vital information assurance role, providing advice and guidance to enable government, industry and the public to protect their IT systems and use the internet safely. Indeed, the director of GCHQ said in March that he is accountable to the Prime Minister just as much, if not more, for the state of cybersecurity in the UK as he is for intelligence collection.
In the past two years, the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including the big names that underpin British business. You do not have to take the Government’s word for that. In September 2015, Apple publicly credited the information assurance arm of GCHQ with the detection of a vulnerability in its operating system for iPhones and iPads, which could otherwise have been exploited by criminals to disrupt devices and extract information from them. As a result, this vulnerability could be fixed.
The assertion that the Government are opposed to encryption or would legislate to undermine it is fanciful. However, the Government and Parliament also have a responsibility to ensure that our security and intelligence services and law enforcement agencies have the capabilities necessary to keep our citizens safe. Encryption is now almost ubiquitous and is the default setting for most IT products and online services. While this technology is primarily used by law-abiding citizens, it can also be used—easily and cheaply—by terrorists and other criminals. Therefore, it can only be right that we retain the ability, as currently exists in legislation, to require a telecommunications operator to remove encryption in limited circumstances, subject to strong controls and safeguards. If we do not provide for this ability, then we must simply accept that there can be areas online beyond the reach of the law where criminals can go about their business unimpeded and without the risk of detection. That would be both irresponsible and wrong.
That is our starting principle, and it is one that we share with David Anderson QC. I have quoted this before, but he stated in his investigatory powers review, A Question of Trust:
“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or digital world”.
This principle was also shared by the Joint Committee on the draft Bill and the Science and Technology Committee, both of which recognised that, in tightly prescribed circumstances, it should remain possible for our law enforcement agencies and security and intelligence services to be able to access unencrypted communications or data. That is exactly what Clauses 229 to 234 of the Bill provide for: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances and subject to rigorous controls.
Clause 229 enables the Secretary of State to give a technical capability notice to a telecommunications operator in relation to interception, communications data or equipment interference. As part of maintaining a technical capability, the Bill makes clear at Clause 229(5)(c) that the obligations that may be imposed on an operator by the Secretary of State can include the removal of encryption. Before a technical capability notice is given, the Secretary of State must specifically consider the technical feasibility and likely cost of complying with it. Clause 231(4) provides that this consideration must explicitly take account of any obligations to remove encryption.
The Secretary of State must also consult the relevant operator before a notice is given. The draft codes of practice, which were published on 4 October, make clear that should the telecommunications operator have concerns about the reasonableness, cost or technical feasibility of any requirements to be set out in the notice, which of course includes any obligations relating to the removal of encryption, it should raise these concerns during the consultation process.
We have also amended the Bill to make clear that the Secretary of State may give a technical capability notice only where he or she considers that it is necessary and proportionate to do so, and, under Clause 230, that decision must also now be approved by a judicial commissioner, placing the stringent safeguard of the double lock on to any giving of a notice to require the removal of encryption. Clause 2 of the Bill, the privacy clause, also makes explicit that, before the Secretary of State may decide to give a notice, he or she must have regard to the public interest in the integrity and security of telecommunications systems.
In addition, a telecommunications operator that is given a technical capability notice may refer any aspect of the notice, including obligations relating to the removal of encryption, back to the Secretary of State for a review. In undertaking such a review, the Secretary of State must consult the Technical Advisory Board in relation to the technical and financial requirements of the notice, as well as a judicial commissioner in relation to its proportionality. We have amended the review clauses in the Bill to strengthen these provisions further. Where the Secretary of State decides that the outcome of the review should be to vary or confirm the effect of the notice, rather than to revoke it, that decision must be approved by the Investigatory Powers Commissioner.
The Bill also makes absolutely clear that, in line with current practice, obligations imposed on telecommunications operators to remove encryption may relate only to encryption applied by or on behalf of the company on whom the obligation is being placed. That ensures that such an obligation cannot require a telecommunications operator to remove encryption applied by other companies to data transiting their network. As we have already outlined, we have also now tabled a government amendment that would further strengthen the Bill’s provisions on technical capability notices. This amendment makes clear that the Secretary of State may vary a notice only where they consider that it is necessary and proportionate to do so. The amendment also makes clear that, in circumstances where a notice is being varied in such a way that would impose new obligations on the operator, the variation must be approved by a judicial commissioner.
Furthermore, obligations imposed under a technical capability notice to remove encryption require the relevant operator to maintain the capability to remove encryption when it is subsequently served with a warrant, notice or authorisation, rather than requiring it to remove encryption per se. That means that companies will not be forced to hand over encryption keys to the Government. Such a warrant, notice or authorisation will be subject to the double lock of Secretary of State and judicial commissioner approval, and the company on whom the warrant is served will not be required to take any steps, such as the removal of encryption, if they are not reasonably practicable steps for that company to take. So a technical capability notice could not, in itself, authorise an interference with privacy. It would simply require a capability to be maintained that would allow a telecommunications operator to give effect to a warrant quickly and securely including, where applicable, the ability to remove encryption.
That is an enormously long list of safeguards. Indeed, it is difficult to think what more the Government could do. These safeguards ensure that an obligation to remove encryption under Clause 229 of the Bill will be subject to very strict controls and may be imposed only where it is necessary and proportionate, technically feasible and reasonably practicable for the relevant operator to comply. Let me be clear: the Bill’s provisions on encryption simply maintain and clarify the current legal position, and apply strengthened safeguards to those provisions. They will mean that our law enforcement and security and intelligence agencies maintain the ability to require telecommunications operators to remove encryption in very tightly defined circumstances.
I would also like to make absolutely clear what the Bill does not provide for on encryption.
Lord Beith
Could the Minister help those of us who are not deeply technical in these matters? We fear that circumstances by their nature cannot be technical and defined. In at least some cases, the consequences of serving a notice would be that the operator would have to create a significant weakness, which would apply far beyond the objective for which the notice was being served, and the operator would have to say in future to its customers, “This system is not as strong as we would like it to be”.
Earl Howe
We come back to the test of reasonable practicability here. I am about to come on to what the Bill does not provide for on encryption and I hope that this will help the noble Lord.
The Bill does not ban encryption or do anything to limit its use. The Bill will not be used to force providers to undermine their business models, to create so-called back doors or to compromise encryption keys. It will not be used to prevent new encrypted products or services from being launched and it will not undermine internet security.
Lord Harris of Haringey
I am very grateful for the detailed exposition that has been given. The Minister says that the Bill will not be used to do those things. Can he confirm that it cannot be used to do those things?
Earl Howe
My Lords, some noble Lords have suggested the Bill’s provisions cause a weakening in encryption, which I think is the central point that the noble Lord is getting at. Many of the biggest companies in the world rely on strong encryption to provide safe and secure communications and e-commerce, but retain the ability to access the content of their users’ communications for their own business purposes, such as advertising, as we have heard. These companies’ reputations rest on their ability to protect their users’ data. This model of encryption can, and does, maintain users’ security. I do not think that anyone would dispute that.
Before I come on to the individual amendments, it would be helpful to address a number of specific points that were raised in relation to encryption. There was a suggestion that a company should never be asked to do something that it does not already do. Such an approach would of course, at a stroke, remove our ability to use any of the powers in the Bill, including carrying out any interception of terrorists’ and serious criminals’ communications, because companies do not do this in the normal course of their business.
There was a suggestion that equipment interference would do away with the need for these provisions. It will not. Equipment interference is no substitute for having a company’s assistance. Even if it were, there are only a very small number of very clever people who are able to carry out equipment interference. There will never be the capacity to deploy them on each and every operation.
Finally, there was a suggestion that encryption is not a problem for the security and intelligence agencies. The heads of those agencies have repeatedly made clear that ubiquitous encryption is one of the most difficult challenges they face.
I now turn to the individual amendments, because I hope that this will clarify the picture further. Amendment 251 seeks to preclude an obligation to remove encryption from being imposed under a technical capability notice in relation to end-to-end encrypted services. I hope that the points I have already made make clear why the proposed amendment is not necessary and indeed why it is not desirable. As I have set out, the Government recognise the vital importance of encryption. Nothing in the Bill does anything to limit its use, and that of course includes the use of end-to-end encryption. But I have also set out the dangers of creating a guaranteed safe space online for those who would seek to do the public harm such as terrorists and other serious criminals, and I am afraid that that is exactly what this amendment would do. The amendment seeks to make explicit provision in law for there to be certain online services that criminals can use to go about their business unimpeded with no fear of being caught. That is not a position that any responsible Government or, I hope, Parliament could support.
What we must ensure is that the Bill enables us to work collaboratively with individual telecommunications operators to establish what steps are reasonably practicable for them to take, considering a range of factors including technical feasibility and likely cost. Any decision will have regard to the particular circumstances of the case, recognising that there are many different models of encryption, including many different models of end-to-end encryption, and that what is reasonably practicable for one telecommunications operator may not be for another.
As I have already said, this is not about asking companies to undermine their existing business models; it is about working with them to find a solution to ensure both that their customers’ data remain secure and that their services cannot be exploited by individuals who pose a threat to the UK. So in answer to the question put by the noble Lord, Lord Harris, I can confirm that these provisions cannot be used to introduce back doors or undermine internet security.
Lord Strasburger
My Lords, if the noble Earl is so confident that none of the unintended consequences listed in Amendment 252A can occur, and that the Government do not want them to occur, what is his objection to putting them into the Bill?
Earl Howe
We already have a wide range of safeguards which I have listed. I do not see that it is necessary to go down the road the noble Lord is advocating because of the dangers that I have pointed out. These amendments would create safe spaces which I am sure that neither he nor any noble Lord would desire to occur.
Lord Harris of Haringey
My Lords, I am enormously grateful to the noble Earl for his detailed response and for reiterating the welcome and voluminous safeguards that are set out in the Bill. They are important and valuable, and they give me confidence about the context of the whole Bill. However, the argument with which he concluded does not quite hold together and there is an elision between different issues. The noble Earl has given an absolute assurance, I think on the basis of a piece of paper that was handed to him, that it cannot be used to require a communications service provider to build a back door or to create one in a future area. But then he said that we must not put in the Bill something that creates a safe space. Either the Government’s position is that this cannot be used to require a company to produce a back door, in which case the safe space exists and presumably the Government are not happy with their own legislation, or it is the case that the Bill could require a communications service provider to build such a back door.
We have already heard from the noble Lord, Lord Evans of Weardale, that what we are trying to do here is balance two national security concerns: the national security concern to prevent terrorism and so on and the national security concern about making it slightly easier for cybercriminals. These are very important issues. If the Government are clear that, as a result of the Bill, a technical capability notice could not require an operator to build a back door that would otherwise not exist, it is important to set that out in the Bill. If we are in a position where techUK says—as it has in the briefing it circulated to me and, I am sure, to other noble Lords—that this is ambiguous, perhaps it is the responsibility of the Government to remove that ambiguity and make the position clear. I do not really want to have to divide the House on this matter, so between now and Third Reading, is the noble Earl prepared to turn the unequivocal assurance he has given that it cannot be used in this way into an amendment to the Bill that will remove that ambiguity?
Earl Howe
With the leave of the House, I hope I can help the noble Lord on this because I do not believe that the Bill is contradictory. First, the term “back door” has been used, but I do not think that is a helpful or accurate way of describing the Bill’s provisions. “Back door” is in everyone’s judgment a loosely defined term. It is used incorrectly to imply that the Bill would enable our law enforcement, security and intelligence agencies to gain unrestricted access to a telecommunications operator’s services or systems, thereby undermining the security of those services—to force that to happen. That is absolutely not the case. The Bill enables our agencies to require telecommunications operators to remove encryption themselves, only in tightly defined circumstances: where they have applied the encryption themselves; where it has been applied on their behalf; where it is reasonably practicable for them to remove it; and where doing so is required to comply with a relevant warrant, notice or authorisation.
I come back to the point I made earlier. This is about the Government being able to sit down with companies and reach agreement with them on the basis of what is reasonably practicable, affordable and so on. It would not be responsible for any Government to deny themselves the possibility of doing that and discussing what in all the circumstances is reasonably practicable for the company, and for the company to agree to do it.
Lord Harris of Haringey
Again I am grateful to the noble Earl. I do not think anyone here has misunderstood the point that this is not about giving the Government uninterrupted access. It is about requiring companies to create a facility so that if they are asked, after all the suitable warrants have been gone through and all the safeguards have been fulfilled, to gain information and pass it back to the Government. I accept that that is the position and that is what is intended here. However, the Minister has still not been unequivocal on whether technical capability measures could require such a facility to be created, so that, in those circumstances and with all those safeguards in place, something could be done. It is a critical issue that we need to clarify. Otherwise, we do not know where we stand as far as the amendment is concerned. The Minister needs to provide the House and the IT industry with as much clarity as he can on this point, because the danger is that it will become the subject of continual argument.
Were the Bill to be amended by any of the amendments in this group, the Government would still have the option to say that they were minded to serve a technical capability notice on a particular company. That would then trigger a series of discussions, because it is what the Bill provides for, and a communications service provider might come back at that point and say, “Look, we literally cannot do it. We do not have the facility”. However, it is not clear whether the Government could none the less say, “Well, we understand that, but we are requiring you to do it”. The question then is: what is or what is not feasible? I happen to believe that some of the biggest communications service providers in the world have more computing expertise than any nation state. If they are told, “You are legally required to do this”, they could do it; they could find a way of making it happen. We have to be explicit as to what the Government’s expectation is. Are they saying, “No, that is not what we are requiring”, or are they saying, “Well, we might”? If they are saying, “We might”, that clarifies the position, if not helpfully. If they are saying, “No, we are not”, which is what the Minister said earlier, perhaps we could put that in the Bill—if not in the form of words proposed, then in some form of words that the Government could craft between now and next week. That would be a helpful way forward and provide absolute clarity as to the extent to which technical capability notices could be served. If I am not able to get that assurance from him—I appreciate that bits of paper have been flying backwards and forwards between him and the Box—we are in a very difficult position.
Earl Howe
I can state categorically to the noble Lord that it is absolutely not the case that the Bill would force a company to insert a back door, thereby undermining internet security. We might ask a company in certain circumstances to decrypt particular data if it was reasonably practicable and feasible for them to do so.
Lord Harris of Haringey
My Lords, I understand that that is the case; that is, if they have the encryption key—we will not use “back door”; we will find another form of words—and the capability to do it, and it is not too complicated and all the relevant warrants are in place, yes, they will do that. As I understand it, most tech companies are perfectly understanding of that and willing to do it. The question is whether, if the Government were presented with a situation they were concerned about, they could say to one of the biggest communications service providers in the world, “We are asking you to build something which is not there at the moment, but we’ll provide that facility for those circumstances that might arise in the future when we’ve gone through all the relevant warrants and so on”. I am looking for an assurance from the Minister that that is not sought here, because of the dangers that we have already discussed. If he wishes, I can reiterate the question to give the Minister the opportunity to read the piece of paper that has just arrived.
Earl Howe
Of course, a technical capability notice can require a new capability to be built; that is what they are there for. If it was neither practicable nor feasible, they would not have to do it. The problem here is that it is very difficult to generalise, because any decision about these things would have to have regard to the particular circumstances of the case. As I said, there are many different models of encryption, including many different models of end-to-end encryption. Any decision has to recognise that what is reasonably practicable for one telecommunications operator may not be for another. That is why I have referred repeatedly to the need for the Government and industry to have that easy interchange which they do at the moment. It is important to emphasise that these powers already exist in law today. We should not do anything that undermines the basis for the constructive discussions that we are having.
Lord Harris of Haringey
The Minister reminds us that the ideal arrangement is one of easy interchange and discussion—I understand that that carries on and works very well. He is right to say—this is why the wording of the current legislation is ambiguous and therefore a problem—that building a technical capability could mean simply putting in a piece of equipment, which means that, at the point at which the Government ask, having gone through all the voluntary processes, it is quite a straightforward matter to provide the information that the Government have legitimately and lawfully requested. That is one definition of technical capability.
What I want to know is whether “technical capability” could apply to a very secure end-to-end encryption process which no communications service provider could break but where, if they devoted thousands of person hours in California or wherever they operate from, they could develop something which might do that. If that is what the Bill is saying, we need to know.
Lord Harris of Haringey
I accept that it would not be reasonably practicable; it would also be very expensive—as I understand the Bill, the Government would have to pay for it and I am sure that technical experts in California or wherever might be very expensive. If that is the case, and if it is not possible to write it into the Bill—I would have thought it could be—it would be helpful for the Minister to write and make very clear what the Government’s intentions are in that regard and confirm that such circumstances are precluded by the Bill. If the Minister is prepared to do that, I am prepared not to press the amendment to a vote.
Earl Howe
I think I have made the Government’s position as clear as I possibly can and I am not sure what I can do to amplify the remarks I have already made. While I want to be as helpful as possible to the noble Lord, I am struggling to see how a letter from me would make the position clearer.
Lord Harris of Haringey
I understand the Minister’s dilemma and I am sure that a letter from him to me would have far less force than the words appearing in Hansard. I appreciate that the courts can look at the debates in Hansard to try to interpret them. However, I ask that the Minister spends the next few days just thinking about some further modification to the Bill to make sure that this ambiguity, which I think genuinely exists—because techUK tells me so—is cleared up. On the basis that I am sure he will spend his waking hours between now and next Monday thinking about precisely these matters, I beg leave to withdraw the amendment.
(a) the Secretary of State considers that the variation is necessary in the interests of national security,(b) ”
(c) if the variation would impose further requirements on the person, the decision to vary the notice has been approved by a Judicial Commissioner (but see subsection (4B)).(4A) The Secretary of State may vary a technical capability notice given to a person only if—(a) the Secretary of State considers that the variation is necessary for securing that the person has the capability to provide any assistance which the person may be required to provide in relation to any relevant authorisation (within the meaning of section 229,(b) the Secretary of State considers that the conduct required by the notice as varied is proportionate to what is sought to be achieved by that conduct, and(c) if the variation would impose further requirements on the person, the decision to vary the notice has been approved by a Judicial Commissioner (but see subsection (4B)).(4B) The condition in subsection (4)(c) or (as the case may be) subsection (4A)(c) does not apply in the case of a variation to which section 233(10) applies.”
“( ) Section 230 (approval of notices by Judicial Commissioners) applies in relation to a decision to vary a relevant notice (other than a decision to which section 233(10) applies) as it applies in relation to a decision to give a relevant notice, but as if—(a) the reference in section 230(2)(a) to the notice were to the variation, and(b) the reference in section 230(2)(b) to the notice were to the notice as varied.”
Lord Paddick
Lord Paddick
My Lords, I shall also speak to Amendment 258B. The powers in the Bill are significant, as are the checks and auditing measures, but the Government accept, in providing for a review of the operation of the Act and in anticipating that a Select Committee of one or both Houses of Parliament will also want to look at the operation of the Act, that a full, independent review is both necessary and desirable. The Bill sets the initial period at five years and six months and requires the Secretary of State to prepare a report within six months of the initial period. These amendments would ensure that before any Government are held to account by the electorate at a general election, the electorate know what that Government have used the powers in the Bill for.
Amendment 258A adds to the requirement to produce a report within six months of the initial period that the report must be produced at least once during each Parliament. Amendment 258B reduces the initial period from five years and six months to two years and six months, to ensure that the actions of the present Government are clear to the electorate at the next general election, subject, obviously, to the current Government remaining in office for the full term. I beg to move.
Lord Rosser
There is obviously going to be a desire to know how the Act is operating and the Bill does provide for a report from the Secretary of State, but it is, let us just say, some time after the day on which the Bill becomes an Act. Assuming that the Government do not accept the amendment, I hope that in responding they will set out, or give some indication, of the bodies and committees which will look at how the Act is operating, including whether it is doing so in line with the terms of the Bill. In that, I include the codes of practice and, particularly in light of the last discussion we had, the statements on the record from the Government in the two Hansards during the passage of the Bill.
Lord Murphy of Torfaen (Lab)
My Lords, I shall add some points to what my noble friend has just said. During our rather long deliberations this evening and afternoon, I went to the Library to look up the definition of “draconian”. It seems to me to be very harsh, very severe. Apparently, it goes back to ancient Greece, where Draco was the statesman who decided that every single crime would be dealt with by a death sentence. It is not a good description of the Bill and the shadow Home Secretary is unfair and, I think, mischievous in what she said, because the Bill is significant, extremely serious and very difficult. It tries to balance the importance of security in our country, which was discussed at some length today, and our liberties.
I have to say that in 30 years in Parliament I do not think I have seen a Bill which has been scrutinised quite as well as this—not just by the Joint Committee that we were on in November and December but by other committees as well and, indeed, what we have seen in this House and the House of Commons. Nevertheless, the Joint Committee, at the very end of its deliberations, knowing full well that there would be an enormous amount of scrutiny, looked at what could happen in terms of review of the Bill. The Information Commissioner, indeed, gave evidence to the Joint Committee indicating that he thought there should be a sunset clause. The then Home Secretary, who has gone on to greater things, indicated that this was not appropriate, but the committee believed that parliamentary review of the operation of what will then be an Act should take place within six months after five years. That has been incorporated into the Bill and it is the most important type of scrutiny that could happen, because that would be a Joint Committee of both Houses of Parliament, one hopes, which could look at how the Bill has operated. The reason the Joint Committee said that was because of the hugely grave and serious nature of the Bill—not just because of the way it touches on the liberties of the subject, but protecting the subject as well.
Lord Keen of Elie
My Lords, we remain sympathetic to the desire for ongoing scrutiny of the Bill, and this is already provided for. In these circumstances we suggest that these amendments are not necessary. The Bill requires that the operation of the Act will be reviewed after five years, which is an entirely appropriate period. It is also consistent with the recommendation, as indicated, of the Joint Committee that scrutinised the draft Bill. We must ensure that, before a review takes place, all the Bill’s provisions have been in effect for a sufficient period that a review is justified and can be meaningful. A review after three years, as provided for by Amendments 258A and 258B, runs the risk that this would not be the case.
We also fully expect the review after five years to be informed by a report of a Joint Committee of Parliament, in line with the recommendation made by the Joint Committee. In addition, concurrent with such a review the Intelligence and Security Committee of Parliament would have the opportunity to assess the more sensitive aspects of the operation of the Act. Let us remember that, in addition, the exercise of the powers provided for under the Bill will of course be subject to the ongoing oversight of the Investigatory Powers Commissioner, who will be obliged to make an annual report to the Prime Minister.
The Government have listened to the previous debates in Parliament and amended the Bill to ensure that the Investigatory Powers Commissioner must, in particular, keep under review and report on the operation of safeguards to protect privacy. Furthermore, the Investigatory Powers Commissioner’s reports must be published and laid before Parliament, providing Parliament with ongoing scrutiny of the operation of the Act. Accordingly, I invite the noble Lord to withdraw the amendment.
Lord Paddick
My Lords, I am grateful to the noble and learned Lord for his explanation. We are still of the view that at least once every Parliament, before a general election is called, a Joint Committee of both Houses of Parliament, as suggested by the noble Lord, Lord Murphy, should look at what the Government have been up to during their time in office so that the electorate are fully aware of how the Government have used the Bill. However, at this stage I beg leave to withdraw the amendment.
Baroness Hamwee
“(a) report on any review by the Investigatory Powers Commissioner on the compliance of—(i) officers of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters, and(ii) members of the armed forces of the United Kingdom and officials of the Ministry of Defence so far as they engage in intelligence activities,with guidance from time to time issued on the detention and interviewing of detainees overseas and on the passing and receipt of intelligence relating to detainees; and(b) ”
Baroness Hamwee
I apologise to the House both that this is a rather inelegantly presented amendment and that it comes at a rather odd point in the Bill, but it covers a matter that was brought to our attention only very recently. I put thanks on the record to the organisation Reprieve for spotting the point. It would more naturally have come with clauses we debated on Monday, but we did not want to table a manuscript amendment for that.
In 2013, the Intelligence Services Commissioner was given additional functions by the then new Section 59A of RIPA. The commissioner is required, so far as directed by the Prime Minister, to keep under review the carrying out of any aspect of the functions of the intelligence services, their heads and the Ministry of Defence and forces engaging in intelligence activities.
Lord Keen of Elie
My Lords, this amendment is unnecessary. The Government have already made it clear that the new Investigatory Powers Commissioner will bring together the existing responsibilities of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner. That includes oversight of the consolidated guidance on the detention and interviewing of detainees. In addition, the Investigatory Powers Commissioner will have a bigger budget and a dedicated staff of commissioners and inspectors, as well as independent legal advisers, to ensure that the highest levels of independent scrutiny are maintained. In these circumstances, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I chose the last words of my remarks quite carefully because it is the statutory basis of the current arrangements that is so important, which is why we raised it at this—I acknowledge—late stage. Obviously, I am glad to have these assurances. They do not answer my question but that position is now on the record. I beg leave to withdraw the amendment.
““premises” includes any land, movable structure, vehicle, vessel, aircraft or hovercraft (and “set of premises” is to be read accordingly),”
““source of journalistic information” means an individual who provides material intending the recipient to use it for the purposes of journalism or knowing that it is likely to be so used,”
““statutory”, in relation to any function, means conferred by virtue of this Act or any other enactment,”
““the Technology Advisory Panel” means the panel established in accordance with section (Technology Advisory Panel)(1),”
“General definitions: “journalistic material” etc.
(1) The definitions in this section have effect for the purposes of this Act.Journalistic material(2) “Journalistic material” means material created or acquired for the purposes of journalism.(3) For the purposes of this section, where—(a) a person (“R”) receives material from another person (“S”), and(b) S intends R to use the material for the purposes of journalism,R is to be taken to have acquired it for those purposes.Accordingly, a communication sent by S to R containing such material is to be regarded as a communication containing journalistic material.(4) For the purposes of determining whether a communication contains material acquired for the purposes of journalism, it does not matter whether the material has been acquired for those purposes by the sender or recipient of the communication or by some other person.(5) For the purposes of this section—(a) material is not to be regarded as created or acquired for the purposes of journalism if it is created or acquired with the intention of furthering a criminal purpose, and(b) material which a person intends to be used to further such a purpose is not to be regarded as intended to be used for the purposes of journalism.Confidential journalistic material(6) “Confidential journalistic material” means—(a) in the case of material contained in a communication, journalistic material which the sender of the communication—(i) holds in confidence, or(ii) intends the recipient, or intended recipient, of the communication to hold in confidence;(b) in any other case, journalistic material which a person holds in confidence.(7) A person holds material in confidence for the purposes of this section if—(a) the person holds it subject to an express or implied undertaking to hold it in confidence, or (b) the person holds it subject to a restriction on disclosure or an obligation of secrecy contained in an enactment.”
“Confidential journalistic material | Section (General definitions: “journalistic material” etc.)(6) and (7)” |
“Journalistic material | Section (General definitions: “journalistic material” etc.)(2) to (5)” |
“Premises | Section 239 (1)” |
“Statutory (in relation to any function) | Section 239(1)” |
“Technology Advisory Panel | Section 239(1)” |
“( ) section 218(2A),”
“but this is without prejudice to the continued operation of section 90(2) to (5) in relation to the notice.”
“_(1) Sub-paragraph (2) applies if any power to give, vary or confirm a retention notice under section 84 of this Act (excluding any power to vary a notice which has effect as such a notice by virtue of paragraph 3(1)) is brought into force without any requirement for approval by a Judicial Commissioner of the decision to give, vary or (as the case may be) confirm the notice._(2) The notice as given, varied or confirmed ceases to have effect (so far as not previously revoked) at the end of the period of three months beginning with the day on which the requirement for approval comes into force.”
“( ) In subsection (3) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”
“Security Service Act 1989
In section 1(5) of the Security Service Act 1989 (meaning of “prevention” and “detection”) for the words from “the provisions” to the end substitute “that Act”.”
“Intelligence Services Act 1994
In section 11(1A) of the Intelligence Services Act 1994 (meaning of “prevention” and “detection”) for the words from “apply” to the end substitute “apply for the purposes of this Act as it applies for the purposes of that Act, except that for the purposes of section 3 above it shall not include a reference to gathering evidence for use in any legal proceedings (within the meaning of that Act).”.”
“Police Act 1997
In section 133A of the Police Act 1997 (meaning of “prevention” and “detection”) for the words from “the provisions” to the end substitute “that Act”.”
“(1) Section 49 (investigation of electronic data protected by encryption etc: powers under which data obtained) is amended as follows.(2) In subsection (1)(b) after “communications” insert “or obtain secondary data from communications”.(3) After subsection (9) insert—“(9A) In subsection (1)(b) the reference to obtaining secondary data from communications is to be read in accordance with section 16 of the Investigatory Powers Act 2016.””
(a) for “23A” substitute “72 of the Investigatory Powers Act 2016”, and(b) for “or 32A” substitute “or section 32A of this Act”.”
“Regulation of Investigatory Powers Act 2000
59A_ The Regulation of Investigatory Powers Act 2000 is amended as follows.59B_ In section 48 (interpretation of Part 2), in subsection (3)(c)—(a) omit the “or” at the end of sub-paragraph (i);(b) after sub-paragraph (ii) insert “; or(iii) Part 5, or Chapter 3 of Part 6, of the Investigatory Powers Act 2016 (equipment interference).”59C(1) Paragraph 2 of Schedule 2 (persons having the appropriate permission where data obtained under warrant etc) is amended as follows._(2) In sub-paragraph (1)—(a) omit the “or” at the end of paragraph (a);(b) after paragraph (b) insert “; or(c) a targeted equipment interference warrant issued under section 101 of the Investigatory Powers Act 2016 (powers of law enforcement chiefs to issue warrants to law enforcement officers).”_(3) In sub-paragraph (5), at the end insert “or under a targeted equipment interference warrant issued under section 101 of the Investigatory Powers Act 2016.”_(4) In sub-paragraph (6)—(a) omit the “and” at the end of paragraph (b);(b) after paragraph (c) insert “; and(d) in relation to protected information obtained under a warrant issued under section 101 of the Investigatory Powers Act 2016, means the person who issued the warrant or, if that person was an appropriate delegate in relation to a law enforcement chief, either that person or the law enforcement chief.”_(5) After sub-paragraph (6) insert—“(6A) In sub-paragraph (6)(d), the references to a law enforcement chief and to an appropriate delegate in relation to a law enforcement chief are to be read in accordance with section 101(5) of the Investigatory Powers Act 2016.””
“_(1) Section 64 (delegation of Commissioners’ functions) is amended as follows.(2) In the heading for “Commissioners’ functions” substitute “functions of the Investigatory Powers Commissioner for Northern Ireland”.(3) In subsection (1)—(a) omit “or any provision of an Act of the Scottish Parliament”, and(b) for “a relevant Commissioner” substitute “the Investigatory Powers Commissioner for Northern Ireland”.(4) Omit subsection (2).”
“(bza) the Investigatory Powers Commissioner for Northern Ireland carrying out functions under this Act”
“Anti-terrorism, Crime and Security Act 2001 | Section 116(3).” |
“(1A) Sections (civil liability for certain unlawful interceptions) and (interception without lawful authority: awards of costs) come into force on the day following that on which this Act is passed.”
“(6A) Any power under an Act to extend any provision of that Act by Order in Council to any of the Channel Islands may be exercised so as to extend there (with or without modifications) any amendment or repeal of that provision which is made by or under this Act.”
Investigatory Powers Bill
Monday 31st October 2016
(8 years, 3 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 66-I Marshalled list for Third Reading (PDF, 72KB) - (28 Oct 2016)
15:41 - Division on Amendment 1 - Ayes: 226 / Noes: 186 - Amendment 1 agreed.
Baroness Hollins
( ) in the course of its transmission by means of a public telecommunication system.”
Baroness Hollins (CB)
My Lords, I had hoped not to detain the House, but last night the Government indicated, to my surprise, that they will oppose this amendment. I hope noble Lords will understand the need for me to set out some of the context.
The debate on Report was very clear about the intention of our amendments to Clause 8, and the large majority in the Content Lobby affirmed this. The noble Earl the Minister helpfully suggested that our original amendments, as drafted, may not achieve our stated objectives. I took advice from the Public Bill Office at some length to clarify the amendment, as allowed for in the Companion to the Standing Orders, at Third Reading. Amendment 1 today aims to ensure that costs protections will apply to new claims alleging illegal phone or email hacking by newspapers, as was originally intended and as was debated.
If the clause is amended today, it will implement, to the limited degree that we are able in this Bill, the court costs incentives and protections of Section 40 of the Crime and Courts Bill, which Parliament overwhelmingly agreed over three years ago. So far the Government have failed to commence Section 40, in breach of that cross-party agreement, so this amendment is just one tiny step towards bringing some much-needed balance into the system.
I refer noble Lords to the report issued to Parliament by the royal charter Press Recognition Panel only last week, which clearly and cogently emphasised why such changes are needed and called on Her Majesty’s Government to commence Section 40. We should remember that the independent Press Recognition Panel audits press regulation; it is not a regulator.
I have had discussions with senior members of Her Majesty’s Government, who contacted me to persuade me not to pursue this amendment on the grounds that it may somehow delay Royal Assent for this important Bill, which has as one of its primary purposes the aim of improving national security. However, given the huge support that the amendments have received so far, I am not minded to give way to this pressure. Very briefly, I will explain why.
One argument being made by the press recently that small local newspapers will be at risk from Section 40 is wrong. Newspapers can simply choose to join a recognised regulator and get the same costs protections that the public will get, unlike newspapers that choose not to join. Since we last divided, there is now a recognised regulator: Impress. The limited amendments to this Bill will not affect small newspapers adversely at all—they do not hack phones. The local newspaper threat is a smokescreen. The protests are really coming from the big newspaper groups, which own most of the regional papers and in effect are using them as newsprint shields. It is the big companies preventing the small papers that they own from seeking the costs protection that flows from membership of a recognised regulator. It is precisely the small papers that will benefit from Section 40 protection—they will be much better placed to practise good investigative journalism—unless they choose voluntarily not to seek that protection. That should be their choice.
This is now urgent. Now that Impress has been recognised, many independent small publishers that are already Impress members are suffering actual detriment from the non-commencement of Section 40, and victims of non-Impress newspapers are not getting the costs advantages they were promised. It is complicated. A central theme in the Leveson report and the cross-party agreement to implement it was how to prevent political interference in press regulation in the interests of free speech. That is why the independent Press Recognition Panel was established, which is politician free. But political interference by the Government is what we are now seeing, with the Secretary of State holding the starting gun for the commencement of Section 40. The Secretary of State appears to accept that IPSO is nowhere near good enough but believes that political pressure will force it to improve to a point where it is on a par with Impress.
On behalf of victims of press abuse, the general public, newspaper readers, front-line journalists and those of us who gave evidence to the Leveson inquiry, I call on the Government to commence Section 40 as they promised to do when this House and the other place overwhelmingly passed it into law. If the Government do so now, we in this House will not need to see the Bill again. But if there are problems with the amendment which might affect security in some way—unbeknown to those of us who have added our name to it—perhaps the Government could meet me and interested parties, and allow a few days’ latitude to get this right. I beg to move.
Lord Paddick (LD)
My Lords, briefly, I support the noble Baroness. My understanding is that this amendment has been tabled because of a drafting issue in the amendment that was overwhelmingly passed by the House, on the basis of the principle of protecting those whose phones have been hacked into by newspapers which have not signed up to an independent complaints system. It is also because the original amendment applied only to private communication networks; Amendment 1 would change it to public communication networks. There is no question at all of a change in principle. I therefore do not understand why the Government would not agree to support this amendment, which is clearly simply to correct that drafting issue. On that basis, we will support the noble Baroness.
Baroness O'Neill of Bengarve (CB)
My Lords, I support my noble friend’s amendment. The situation is complex and I think everybody concedes that the amendment as passed by your Lordships’ House last week had deficiencies. However, it was agreed by the Public Bill Office that it was adequate, as it has agreed that the amendment which is now before your Lordships is adequate. It seems to me that the ball is in the Government’s court to try to work out a way in which to achieve this. We must remember that in this Bill we have, for good reasons to do with press freedom, given the media very considerable additional protections for journalistic sources. That is open to possible abuse because sometimes there is no source or there might be, let us say, an incorrect reporting of a source. The quid pro quo for that is surely some protection for the public. Amendment 1 is not perfect, but if it is not to be accepted by the Government, I hope that the Minister will suggest how the Government propose to deal with the evident lacuna, and the risk to members of the public, of having greatly empowered media.
Lord Low of Dalston (CB)
My Lords, in considering this amendment we need to be mindful of lessons from history. We have heard the tale before that the press will reform itself. Some noble Lords will remember similar debates following the 1990 Calcutt inquiry. When asked to report on the efficacy of the PCC in 1993, Sir David Calcutt said that it was not doing its job and that the time for statutory regulation had come. But Parliament lost its nerve and the press was allowed to carry on underregulated, with disastrous consequences for ordinary people. Predictably, the newspapers are telling us that IPSO is a much improved version of the PCC, but it falls woefully short of the standards set out by Lord Justice Leveson.
Since we last voted, the Government’s position has actually hardened. When setting out the Government’s response to the amendment of the noble Baroness, Lady Hollins, in Committee, the noble Earl, Lord Howe, said:
“I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case … the Government continue to look at this issue closely … this is something that the Government are actively considering. … The position is that, for the time being, Section 40 remains under consideration”.—[Official Report, 11/10/16; col. 1809.]
Last Monday, on 24 October, the Secretary of State said at the Culture Select Committee that she was not minded to commence Section 40. The Times the next day—last Tuesday, 25 October—ran a triumphant front-page story based on what it later said were reliable government sources. It said:
“Westminster sources revealed last night that the ‘punitive elements’ of Section 40 of the Crime and Courts Act …‘will not go ahead’. The change of tack, which avoids a clash between Theresa May and the media, came on the eve of a decision to approve a new regulatory body”.
The Government have not informed Parliament of this and have not sought to correct the story.
Lord Rosser (Lab)
My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.
I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.
I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.
On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.
We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.
A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.
The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.
As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.
Baroness Hollins
My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.
If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.
On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.
I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.
Lord Keen of Elie
Lord Keen of Elie
My Lords, I will now address a series of government amendments which are minor and technical in nature. They aim to correct minor drafting oversights and inconsistencies within the Bill, as well as to clarify provisions and make minor consequential changes. Clause 41 contains special rules that apply for certain mutual assistance warrants, and Amendments 2, 3 and 4 correct inconsistencies in language in this clause. Amendment 5 is consequential on amendments made on Report in this House, which clarified that a communication can be between machines as well as people. Amendment 10 corrects an inconsistency in language with regard to the renewal of equipment interference warrants. Amendments 21, 22 and 23 are all minor amendments to those clauses of the Bill that relate to bulk acquisition warrants. Amendment 33 is another technical amendment, which provides that Clause 272(4) comes into force on the day on which the Bill is passed. Finally, Amendments 34, 35 and 36 are all minor and technical amendments that are designed to improve and clarify the written language of the Bill. These minor and technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.
Lord Rooker (Lab)
My Lords, I support the Minister on this group of amendments. As I do not propose to speak on the next and final group, I just want to make a couple of general points about the Bill, which will take only a minute or two.
This is the final day of our deliberations on the Bill, which has had a remarkable passage through Parliament. That is mainly due to the fact that the Government had a draft Bill, and there was also the independent report on surveillance and the work of the Joint Committee. Added to that, the Government were willing to respond to points made by amending the Bill. There will of course be only one issue for the Members of the Commons, who will see a non-government amendment on the matter on which we have just voted and on which I do not wish to comment.
I hope that Labour Party Members in the House of Commons will support the hundreds of Lords amendments. Many of these have been proposed by members of parties other than the government party, although a lot have come from the Government. They make this legislation more than a government Act; in my view, it is truly a parliamentary Act, given the input from other parties.
When the Bill was introduced in the Commons in March this year, I broke a 15-year vow of silence by speaking at the Parliamentary Labour Party to oppose the idea that Labour should abstain if there was a vote at Second Reading. I pleaded for support for the Bill at that point. However, there are still people on the Labour Benches in the Commons who oppose the Bill and I think that my colleagues there should ignore them. It is not a snoopers’ charter; it is not draconian; and it is not a stop-and-search power for the digital age. It will make UK citizens safer. Whether one looks at things like the request filter, the oversight procedures, the privacy protection or the obligations on communications service providers, just to take four aspects, it is a Bill that deserves active support, not sniping from the sidelines or the Front Bench.
There is one hole in the Bill. The Bill is about the state and its duties and responsibilities. The gaping hole now is the use that commercial service providers make of personal information given to them by citizens as they use the services. On page 41 of the report of the RUSI panel, on which I had the honour to serve, we listed the word length of the terms and conditions of popular internet services, and I do not propose to go over those again. All we do as users is tick a box, which means that companies analyse the content of our search results and the content of our emails when we send and receive them and when they are stored. This is done so that we can receive targeted advertising. Indeed, one service provider has filed a patent about being able to sense the mood of the user so that it is better able to make more profit. The Government will not be allowed to do that under this legislation, and Labour MPs should think about that if they are asked to oppose the Bill.
Lord West of Spithead (Lab)
My Lords, I support these amendments and I strongly support my noble friend Lord Rooker in everything that he has said. This Bill is a classic example of how a Bill should come through this place. The way in which it has been built up across Parliament has been remarkable. It meets all the requirements for our security and for personal liberty, and we should be very proud of it.
Baroness Jones of Moulsecoomb (GP)
My Lords, I was going to speak later but I will speak now, as I am driven to do so by the comments of previous speakers.
The Bill is undoubtedly better than it was at the start. It could not help but be because of all the effort that people have put into making it better, but it is still a most appalling piece of legislation and I should like to read something to noble Lords:
“Today, an ordinary person can’t pick up the phone, email a friend or order a book without comprehensive records of their activities being created, archived, and analysed by people with the authority to put you in jail or worse. I know: I sat at that desk. I typed in the names. When we know we’re being watched, we impose restraints on our behaviour—even clearly innocent activities—just as surely as if we were ordered to do so. The mass surveillance systems of today, systems that pre-emptively automate the indiscriminate seizure of”,
private records, constitute a sort of surveillance time machine”,
“—a machine that simply cannot operate without violating our liberty on the broadest scale. And it permits governments to go back and scrutinise every decision you’ve ever made, every friend you’ve ever spoken to, and derive suspicion from an innocent life. Even a well-intentioned mistake can turn a life upside down. To preserve our free societies, we have to defend not just against distant enemies, but against dangerous policies at home. If we allow scarce resources to be squandered on surveillance programmes that violate the very rights they purport to defend, we haven’t protected our liberty at all: we have paid to lose it”.
That sums this Bill up. It was written by Edward Snowden, who, as he said, sat at that desk. It was written for Liberty.
Lord West of Spithead
My Lords, does the noble Baroness accept that Edward Snowden, by releasing millions of bits of classified material, has actually made all of us less safe than we were? It is a certain fact that he has done that. He is hardly someone to quote as a great and noble person.
Baroness Jones of Moulsecoomb
I think that we will find in the future that this legislation will return again and again to bite us, and many of us here will regret having passed it.
Lord Murphy of Torfaen (Lab)
My Lords, I disagree with the noble Baroness, Lady Jones. She played an important role in the course of this Bill in reminding your Lordships of the need to deal with the liberty of the citizen. But the greatest threat to the liberty of the citizen is the threat to life. This Bill, which is now in its final stage, is extremely important in ensuring that in future our citizens are protected against terrorism and the threats that face this country and beyond.
Of course, there were and are still issues that need to be taken very seriously with regard to the liberty of the subject. But in all the years that I have been in Parliament, I have not seen as much scrutiny of a Bill as this one. Not only did the Joint Committee, which I had the honour to chair, go through all the details of the Bill over a number of months, the other committees in Parliament also dealt with it, not least the Intelligence and Security Committee.
I commend the Government—not something that I usually do, but I will on this occasion—on accepting a great number of amendments to the Bill, which have improved it in the sense of ensuring that our liberties are safeguarded but that the basic thrust of the Bill remains the same. This has been a tremendous exercise in parliamentary scrutiny. As my noble friend Lord Rooker said, it is Parliament’s Bill as much as it is the Government’s.
Lord Keen of Elie
I am obliged to the noble Lord, Lord Rooker, for making his point at this stage. This is an important Bill. It will update the framework for the use of investigatory powers to obtain communications for the foreseeable future. But it not only provides powers, it provides safeguards that are clear and understandable: the double lock for the most intrusive powers; the creation of a new Investigatory Powers Commissioner; important safeguards on oversight in respect of legal professional privilege and in respect of journalistic material; a government response to David Anderson’s review in respect of bulk materials; and extensive consultation with the bodies affected by investigatory powers.
What we have today is the product in this House of cross-party collaboration. The parties opposite have taken an incredibly constructive and reasonable approach during the Bill’s passage and we are sending a significant number of changes back to the House of Commons. But those changes are evidence of the constructive engagement from all sides in this House. I particularly note the contributions of the noble Lords, Lord Rosser, Lord Rooker and Lord West, the noble Baroness, Lady Hayter, and from the Liberal Democrat Benches the noble Lords, Lord Paddick, Lord Carlile and Lord Lester, and the noble Baroness, Lady Hamwee. Indeed, the noble Lord, Lord Strasburger, also contributed to our debates on this matter. Of course, members of the ISC and Members on the Cross Benches have taken a great interest in the passage of this Bill. I cite the noble Lords, Lord Butler and Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, and I am sure that I have missed many others. But this expression is intended for all Members of the House who have taken this matter forward and produced a Bill that we can send back to the other place with confidence, subject possibly to one amendment.
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
My Lords, in moving this amendment I shall speak also to the other amendments in the group. This House has already discussed the important issue of legal privilege and whether the protections in the Bill for material that attracts privilege are adequate. At Report stage, the Government made a number of amendments significantly increasing the protections afforded to such material which were welcomed by this House.
In response to an amendment proposed by the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, we also committed to consider whether there was more we could provide in the Bill to set out what the Investigatory Powers Commissioner must do when privileged material has been obtained and an agency wishes to retain it, and the considerations that he or she has to take into account when deciding whether material can be retained. The amendments tabled today speak to that issue, and in broad terms they do two things.
First, they provide that the Investigatory Powers Commissioner must order the destruction of privileged material or impose conditions on its use or retention unless the public interest in retaining the item outweighs the public interest in the confidentiality of items that are privileged, and retaining the item is necessary in the interests of national security or to prevent death or significant injury. Secondly, they provide for the commissioner to be able to impose conditions as to the “use or retention” of privileged items rather than its “disclosure”, as was previously the case. This makes it abundantly clear that decisions about what can be done with privileged material—whether it can be retained and who can be told about it—rest entirely with the commissioner, a serving or a former High Court judge who is, of course, well placed to make decisions which have at their heart public interest in the confidentiality of items subject to legal privilege.
The amendments relate to the interception provisions, both targeted and bulk, to the equipment interference provisions, both targeted and bulk, and to the provisions that relate to bulk personal datasets. The Bill therefore makes it clear that in every circumstance where legally privileged material is obtained and an agency wishes to retain it, whether the material is obtained intentionally or inadvertently, the commissioner must order its destruction or impose conditions on its use and retention unless its retention is necessary in the interests of national security or to prevent death or significant injury, and the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to privilege.
Amendments 11 and 24 are more minor and technical in nature. They ensure that Clauses 132 and 195, which relate to the retention of items obtained by targeted and bulk equipment interference, are consistent with the equivalent provisions in those parts of the Bill that deal with interception. I trust that noble Lords will agree that the Government have listened at every stage to the concerns of this House about the vitally important protections that must apply to material which attracts legal privilege, and I hope that they will further agree that the revised protections in the Bill reflect the sensitivity of legally privileged material while ensuring that sensitive but potentially vital intelligence remains available to the agencies in very limited circumstances. These final additions to the Bill make it clear that the criteria which apply to a warrant that authorises access to legally privileged material similarly apply to its retention.
I am obliged not only to the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, in respect of these amendments, but also to my noble and learned friend Lord Mackay of Clashfern, who is not in his place today but who has contributed much to the discussions regarding these provisions. I beg to move.
Lord Pannick (CB)
My Lords, when the Bill came to this House, legal professional privilege—that is, the right of members of the public to seek and obtain confidential legal advice—was not adequately protected. The Minister and the Bill team have listened to the concerns expressed by the Bar Council, the Law Society and noble Lords on all sides of the House. The Minister has held a number of meetings; he has looked anxiously at these issues with the Bill team and has responded on Report and again today. I am very grateful to him.
Baroness Hamwee (LD)
My Lords, I moved amendments at the last stage. Having listened today to the plaudits given to Members of your Lordships’ House and the other place for the constructive way the Bill has been taken forward from when it was first a glimmer in the Government’s eye, I want to add plaudits for the efforts made outside the Palace of Westminster. The noble Lord, Lord Pannick, referred to the Bar Council—even if not quite everything it wanted has been agreed to—and to the Law Society, whose work on behalf not of lawyers but their clients has been invaluable in this process. It has been heartening to take part in this process, given the outcome, and to see how seriously and carefully the Government and members of the Bill team, for whom I know this has proved something of an intellectual challenge, have dealt with it. We are grateful to the Government.
Lord Keen of Elie
“(3A) If the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (3)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(3B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
Lord Keen of Elie
Lord Keen of Elie
“(3A) If the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (3)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(3B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
Lord Keen of Elie
“(10A) If the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (10)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(10B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
“(10A) If the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (10)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(10B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
Lord Keen of Elie
“(2A) If the Investigatory Powers Commissioner considers that subsection (2B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (2)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(2B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
Lord Keen of Elie
Lord Keen of Elie
“( ) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 57), or(b) any secondary data obtained from a communication.”
Lord Keen of Elie
“(3) In paragraph (a) of the definition of “communication” omit “(except in the definition of “postal service” in section 2(1))”.”
Lord Rosser
Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.
INVESTIGATORY POWERS BILL (PROGRAMME) (NO. 3)
Tuesday 1st November 2016
(8 years, 3 months ago)
Commons ChamberRead Hansard Text Amendment Paper: HL Bill 68-I Marshalled list for consideration of Commons reasons (PDF, 78KB) - (1 Nov 2016)
Table | |
|---|---|
Lords Amendments | Time for conclusion of proceedings |
Nos. 11 to 15, 338 and 339 | 90 minutes after the commencement of proceedings on consideration of Lords Amendments |
Nos. 1 to 10, 16 to 337 and 340 to 377 | The moment of interruption |
Investigatory Powers Bill
Wednesday 2nd November 2016
(8 years, 3 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-I Marshalled list for consideration of Commons reasons (PDF, 78KB) - (1 Nov 2016)
16:21 - Division on Motion E1 - Ayes: 271 / Noes: 242 - Motion E1 agreed.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we return to the regulation of the press and the outcome of the Leveson inquiry. Yesterday my right honourable friend the Secretary of State for Culture, Media and Sport launched a 10-week public consultation relating to Leveson part 2 and the commencement of Section 40 of the Crime and Courts Act. The consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in this country. I hope noble Lords will welcome this announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.
Before we consider the ins and outs of press self-regulation, it is important that we all remember the context in which we are having this debate: the Investigatory Powers Bill. The Bill’s passage has been a long one, from its inception after three independent reviews, through pre-legislative scrutiny by three parliamentary committees to the thorough scrutiny subsequently applied by both Houses. The Government have recognised the need for consensus on legislation of this significance. They have listened and substantially changed the Bill in light of the scrutiny it has received. Both Houses have improved the Bill.
There is consensus on the need for the Bill. It is one of the most important pieces of legislation this Government will take forward. The Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers and it will create a powerful new body responsible for oversight of those powers.
I remind the House that the Bill replaces provisions in the Data Retention and Investigatory Powers Act 2014 that will sunset at the end of this year. The loss of those powers would pose a significant threat to the ability of law enforcement and the security and intelligence agencies to protect the public. I must therefore be clear: the Bill is important for our national security. The Government believe that there should be no delay in the passage of this important legislation.
Yesterday, the House of Commons considered the amendments put forward by this House which strengthened the safeguards in this important legislation and added clarity. It unanimously accepted them all. However, the Commons decisively rejected the amendments put forward in relation to regulation of the media—the press.
Lord Wallace of Tankerness (LD)
The noble Earl has made the point that we should have no delay in the passage of the Bill. If your Lordships’ House should in fact support the amendments tabled today in the name of the noble Baroness, Lady Hollins, and the Bill goes back to the other place, when would the other place intend to debate these amendments and when would we get the opportunity to debate them again? Will it be tonight or tomorrow?
Earl Howe
My Lords, it will not be that soon. My understanding is that it will not be until after the mini-Recess that we would come to debate these matters again, should the House support the noble Baroness.
Many honourable and right honourable Members in the other place spoke of how this vital Bill was not the place to consider the important, but unrelated, matter of the regulation of the press. They were right to do so. I say to the noble Baroness, Lady Hollins, that the issues she has raised are of critical importance. She herself was treated terribly by rogue elements of the media. As the Secretary of State for Culture, Media and Sport acknowledged yesterday in the other place, we know that in the past some elements of the press abused their position and ignored not only their own code of practice but the law. It was clear to all that there needed to be change.
However, a free press is also an essential component of a fully functioning democracy. The press should be able to tell the truth without fear or favour and to hold the powerful to account. A number of those who spoke in the debate in the other place yesterday made the point that the press self-regulatory landscape has changed significantly over the past four years, since the Leveson inquiry reported. It is therefore surely right that the Government now take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established in the first place can never happen again. I hope that noble Lords who have spoken so passionately on this issue will take the opportunity to contribute to the consultation in order that we get a broad range of evidence on which to make decisions.
I am the first to acknowledge that the issue of press regulation is a vitally important one. It deserves the fullest consideration, consultation and debate, but the Bill is vitally important as well. It will provide our law enforcement and security and intelligence agencies with the powers that they need to keep us all safe. I contend strongly that this Bill is simply not the place to try to regulate the press. Given the events of yesterday and the new consultation, which is the right way to approach the issue of press self-regulation, I invite noble Lords not to insist on the amendments that have been tabled and not to delay further the passage of this vital and world-leading legislation, which is essential to the safety and security of us all. I beg to move.
Baroness Hollins (CB)
My Lords, it is with regret that I return to my initiative one more time. I suggest that we do have time to consider it and I will speak to my Amendments E1, F1 and G1.
The issue at the heart of these debates remains simple: there was a widespread criminal conspiracy involving, it now turns out, more than one newspaper group. It lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry—the Leveson inquiry—and in 2013 a cross-party agreement was signed, committing Her Majesty’s Government to implementing its recommendations. As a result of that agreement, this House withdrew cross-party amendments to the Enterprise Bill and the Defamation Bill.
Lord Lipsey (Lab)
My Lords, I have some sympathy with the Minister’s position that this is not a brilliant place in which to legislate on press matters, but we need to put this in a bit of perspective. In the previous Parliament, there was total agreement in both Houses, among the Government and the Opposition, about what needed to be done to bring Leveson into effect. What happened after the election? Absolutely nothing. It was left to go sour outside the fridge.
The only reason we now have a lively debate on Leveson starting up again is because of the noble Baroness’s amendment and the decision of this House, which I was part of, to pass it by an enormous majority. That is the only reason we are talking about Leveson now. We would not have had a Green Paper yesterday without this debate. We would have been stuck in the Whittingdale position of not yet being convinced that the time was right.
It was quite staggering, reading the Commons debate yesterday, to see the number of Conservative MPs in particular who stood up and said, “Well, Leveson’s passed; it’s a long way behind us now and is not relevant any more. Press regulation has moved on”. Why has such a time passed by? Because the Government have done absolutely nothing to further Leveson. Meanwhile, the divides over Leveson have visibly grown.
I feel a deep sense of disappointment that Sir Alan Moses, who as chair of IPSO started off appearing to want to change it, has now become yet another of the press natives, totally defending everything IPSO does. I was disappointed in the IPSO-funded Pilling report, which seemed to me to give meaning to the word whitewash. I am disappointed by the arguments being used by the local press, claiming that the Hollins amendment in some way threatens it. The Hollins amendment is confined to phone hacking, and one thing local papers certainly never do is phone hack. It is completely irrelevant to them, yet they are doing this. This is not a way of moving things forward.
Having said those things quite strongly, I want to make it clear that, from a wholly personal point of view, I am in favour of looking for a compromise on these matters. I am an ex-journalist and know how strongly journalists feel about state interference in the press. I happen to think that these fears are exaggerated in the case of the royal charter disposition, but they do exist. I would be prepared to give some weight to that, if only the press would give some weight to the case against IPSO as it is constituted, which is set out at great length in a good document by Martin Moore, which many noble Lords will have read. Essentially, the proprietors and newspaper companies have IPSO in an iron grip called finance: they decide what finance it gets and what code is followed. They have IPSO under their control.
Some may feel IPSO is a brilliant regulator as things stand. Some, having read the recent decision in the Kelvin MacKenzie case about the newsreader who read out the news in a Muslim outfit—I will not go into it—may be less convinced that IPSO, as we now have it, is effective. The truth is that the moment it is accepted that IPSO is right, everything is settled and the Government are going to do nothing by bringing in Section 40, IPSO will start to slide back, as press regulators have on every occasion once Parliament’s eye is off them.
I would like to see the Government in an active search for a compromise and using the threat of Section 40—it is a threat—to advance that. I think they will do so with a stronger hand if, in the meantime, this House insists on the amendment being made to the Bill, so that the press representatives can see that the time has come to compromise and not insist that they must have their whole way without any concessions of any kind whatever. If we politicians do not stand up to the press, the press will walk all over us. I hope everybody in the House will therefore support the noble Baroness, Lady Hollins, in her attempt to prevent this happening.
Lord Paddick (LD)
My Lords, I support whole- heartedly what the noble Baroness, Lady Hollins, and the noble Lord, Lord Lipsey, have said, and will address the comments of the Minister. He talked about a 10-week public consultation on Section 40 of the Crime and Courts Act 2013 together with Leveson 2 showing government commitment to the issues. My understanding is that Cabinet Office guidelines on consultation say that it should be for a minimum of 12 weeks and should not be over a holiday period, which this only 10-week consultation is. I wonder whether that calls into question the Government’s commitment.
The noble Earl talked about the context of the Bill and its long passage. If the Government are concerned about the sunset clause, which the Bill addresses, why, if the House passes the amendment this afternoon, is no further consideration to be given to it until 15 November—when it could be further considered either this evening or tomorrow, as my noble and learned friend pointed out?
The noble Earl also said that the Bill is not the place to consider this issue. The Public Bill Office clearly disagrees with the Government because, yet again, it has allowed this amendment to the Bill to be considered.
Yes, we must ensure a free press, but that does not mean a press able to do whatever it wants. We need a press that is also accountable, and that is what the amendment is about.
Lord Pannick (CB)
My Lords, I cannot support the amendments of the noble Baroness, Lady Hollins. I declare an interest: I have given advice to a number of newspapers on press regulation issues.
There are different views on the wisdom or otherwise of Section 40 and of Leveson part 2, but the merits or dangers of press regulation should not be allowed to determine the issue before the House today. It is very simple. There are two reasons. First, the Bill is vital to national security. This House has spent hours in Committee and on Report improving the Bill’s contents in a non-partisan spirit. Whatever views noble Lords may have on Section 40 and on the failure yet to implement it, that is no justification for the passage of this important Bill to be held hostage by those who wish to further the cause of Section 40. I say to the noble Lord, Lord Paddick, that this is not about whether the amendments are within scope—plainly they are—the point is whether it is justified to hold up a Bill of this nature, a Bill about security, to advance a point of view on press regulation.
The second reason why I cannot support the amendments of the noble Baroness, Lady Hollins, is because whether or not to implement Section 40 is now the subject of a 10-week consultation. I simply cannot understand the objections to the Government having a 10-week consultation. The noble Lord, Lord Paddick, says that it should be 12 weeks; perhaps it should and perhaps it should not, but that is not a substantial point. The noble Baroness, Lady Hollins, and those who agree with her can argue their case about Section 40 and Leveson during the consultation. It is quite indefensible to hold up this vital Bill when the issue about which the noble Baroness is concerned—perhaps rightly—is the subject of active consultation.
Lord Rooker (Lab)
My Lords, yesterday, I watched the Secretary of State when she delivered the Statement—the first time I have seen her at the Dispatch Box. I did not see the debate later, but I watched the Statement and all the questions on it. I got the impression that she was really threatening the press about Section 40. The noble Baroness, Lady Hollins, referred to this in another context. I was struck by the number of Conservative Members of Parliament who I would say are people of substance—they were there when I was there; they have been there a long time—who basically threatened IPSO. They made the point that there has to be a different, cheap system of adjudication before going to court. That is what I felt they were pushing for. They will not vote for that today or tomorrow; they will wait for the end of the consultation. I have supported both the noble Baroness and Leveson on more than one occasion, but I think that we should stick to the main issue today, which is Royal Assent for this Bill. I personally do not intend to vote to stop Royal Assent.
Lord Butler of Brockwell (CB)
My Lords, I have been second to none in this House in supporting the importance of this legislation. I have taken part at various stages and have contributed in a minor way to its improvement. The powers it replaces do not expire until the end of the year. If the House of Commons again rejects —as I expect it will—the amendments that are being passed today and they come back to this House, I will not then support them, because I do not want to see the Bill delayed. However, this is an opportunity to show that this House believes strongly that the Government mean what they say about a proper consultation on the pursuit of Leveson.
I do not think I am alone in suspecting that the Statement made by the Government yesterday was a diversionary tactic. I hope it was not, but we have an opportunity today to show that this House really believes that this must be pursued seriously and that action must be taken—perhaps on a compromise basis—to achieve the objectives of the Leveson report.
Lord Wallace of Tankerness
To follow the point made by the noble Lord, Lord Butler of Brockwell, I think it important that the other place be given another chance to think about the Bill. To date, it has had only one opportunity to consider it, based on the amendments your Lordships’ House passed when the Bill was in this House. There will be another opportunity.
As has been pointed out by the noble Lord, Lord Rooker and noble Baroness, Lady Hollins, a number of Conservative Members yesterday during the questions following the Statement by the Secretary of State at the Department for Culture, Media and Sport indicated that they were not persuaded by the Government’s case for not yet implementing Section 40. Dr Andrew Murrison asked whether the Secretary of State agreed,
“that it would be reasonable to accept Baroness Hollins’ amendments”,
and Sir Gerald Howarth—not someone I am usually given to quoting with approval—asked:
“Does she not agree that a great virtue of the Leveson inquiry was that it took this whole contentious issue out of the hands of politicians; that by going for this consultation, which she will respond to, she is in danger of embroiling politicians in the issue again; and that low-cost arbitration has to be part of the solution?”.—[Official Report, Commons, 1/11/16; col. 806.]
So there is some indication that even on the Government Benches in the Commons, there are Members who are not persuaded of the Government’s position. I hope that one might describe it as a consultation of convenience that it came along when it did.
I will come back to that point but, on the point made by the noble Lord, Lord Pannick—which has been addressed by the noble Lord, Lord Butler—we know that the legislation which this Bill as a whole seeks to replace has a sunset clause. That clause is just under two months away; we have heard from the Minister that even if your Lordships vote for the Motion of the noble Baroness, Lady Hollins, today, it will be another two weeks until the House has the chance to consider it again. There is no urgency on the Government’s part to get Royal Assent this week.
It is also clear that the content of the Bill is in no way threatened by the amendments proposed by the noble Baroness. They are supplementary and do not detract in any way from the security issues which have been a matter of considerable debate on the part of your Lordships and, indeed, the House of Commons. They seek to address the very specific reasons that were put forward by Ministers and in the other place as to why this was not a suitable amendment. She has sought to, as it were, uncouple these amendments from the other parts of the Bill. They are supplementary and in no way detract from the security issues in the Bill.
As I indicated when we debated this matter on Report, for me what is important is that commitments were made to Parliament—to both the House of Commons and your Lordships’ House—back in March 2003, when various amendments were withdrawn: amendments to the Defamation Bill that your Lordships’ House had passed and amendments that had been tabled, I believe, to the Enterprise Bill and, in the other place, to the Crime and Courts Bill. They were withdrawn on a clear understanding that certain amendments going forward to the then Crime and Courts Bill would be implemented. I was part of the group who worked on the cross-party agreement, although I was not present when it was reached. Subsequently I also did much on a royal charter so that press regulation would be taken as far away from politicians as possible. The commitments made to Parliament are in jeopardy through the Government not implementing Section 40. More importantly, commitments were made to some of the victims of hacking. We should remember that the amendment we are discussing does not go as far as Section 40: it relates only to phone hacking. Along with the then Deputy Prime Minister, my right honourable friend Nick Clegg, I met the parents of Milly Dowler. Two things that struck me were their great dignity but also the great pain they had suffered. The Prime Minister gave commitments to them and other victims that there would be an inquiry, which took place, and that efforts would be made to ensure that such things did not happen again. These commitments trump any consultation. That is why I support the amendment in the name of the noble Baroness, Lady Hollins.
Lord Prescott (Lab)
My Lords, this measure is not only diversionary, it is an attempt to finish off everything that Leveson proposed after an inquiry that lasted years. Everybody agreed that the hacking which occurred was terrible, particularly me as I was one of those who were hacked. I complained to the police, who did not believe me, to the Press Complaints Commission, which did not believe me, and then to all the bodies concerned with the issue, even the Crown Prosecution Office. They did not believe me. Eventually, I had to go to court to find justice on a human rights matter. Only then did all these bodies admit that they were aware of the evidence but did not declare it to me. I do not think the situation has changed. If the Government are saying that something will be different, will they please spell out what that difference is? What would happen if that situation were to occur now? I might add that the Investigatory Powers Bill will allow an awful lot more hacking than we have at present, as that is what it is designed to do. We talk about terrorism but what is to stop the police pursuing the matter, given their new technology, and perhaps not do so properly? Those affected by that action should then have a right to complain. If abuse occurs through the use of the technology, what do you do then? To whom do you complain?
The consultation went on for years under Leveson and those who played a part in it. We do not need any more consultation to work this out. I listened to the debate in the House of Commons and to all those people who agreed to this legislation and to the royal charter, every one of whom is now saying that we should start consultation. What happened? This started when Mr Whittingdale told the press that he was not minded to implement Section 40. He did not tell Parliament as by then he had moved on from the office of Secretary of State. This is a step-by-step process to get rid of Leveson’s recommendations. That is what it is really about. The next stage is to quash what he said about having a second inquiry into the relations between the police and the press. That is still ongoing. If anybody does not believe that, they can read it in the press every day of the week. The new IPSO, or whatever it is called, not only makes a judgment but also complains in the press. It made a judgment about me a few months ago when I made a complaint. That situation has not changed. Recommendations were made regarding having a new authority, but we have done nothing about it. We are locked in dispute on this. Therefore, to that extent I do not think anything has changed. When the Prime Minister met Murdoch in New York, they might have just thrown it into the conversation whether we should make these changes. It happened before with the previous Prime Minister—meeting secretly and then doing a deal. That is not acceptable. What I find most offensive of all is that we all agreed in this Chamber, and in the other Chamber when I was there, to take action. Admittedly, they wrapped it up in the royal charter. I did not agree with that royal charter argument. I always thought we wanted to keep the Queen out of politics. She is right in the middle of it now, is she not, with the royal charter?
There is a dispute among politicians about what is to be implemented. That is the reason I resigned. I was the only one to resign, apparently, from being a privy counsellor—that is, one who had not been to jail or got caught in some scandalous situation. That was a view of mine about the charter. That was the first weakening of the case for implementing Leveson. That was the first mistake we made.
We now appear to be discussing what we have already passed. We have already agreed it. I listened to the debate yesterday, in which it was said, “This is the wrong Bill”. We said it was the wrong Bill in this House; we recognised that. But it is the wrong Bill because the Government did not carry out what is already in legislation. It is there, we discussed it and we voted on it in both Houses. Nobody, as I understand it, voted against it. Then, we were told that the Minister, like all her MPs yesterday, is saying, “This isn’t the Bill. This is a serious matter”. I understand what they mean by that, but it came about only because they refused to carry out what they had voted for. That is what we are dealing with today. Now we are questioning what we in Parliament are supposed to have made a decision about, and saying that we are going to have a consultation. But it is a consultation to get out of the obligations that this House and the other place agreed to. That is unacceptable.
We have started the battle again about the reality of the press. We talk about freedom of the press, but does anybody complain about the freedom of the victims? No. They have a lot to say but I do not hear their voice. I did not hear them mentioned much in the House of Commons yesterday.
Lord Prescott
I am here; I am in the other part of Parliament. They did not mention the victims, who were promised justice by every one of us. What do you think those victims feel, reading in the paper now that we are preparing to consult? They were involved in the consultation following incidents in which they suffered press intrusion. I do not believe the situation has changed, and we will have to have a debate about the independence of the complaints system. But I am quite shocked that we are now about to back out of what appeared to be an overwhelming commitment from Prime Ministers and party leaders.
Consultation? It is not consultation. It is leaving via the back door because we do not have the guts to implement a charter that was first agreed to some years ago, and which we all agreed to for good political reasons some months ago. Everybody felt under pressure. Now they feel free to get out of their obligations. That is terrible. It is the start of Parliament reducing its powers. This is a terrible step towards getting rid of the obligation to the individual in our society, who has the right to privacy.
There has been lots of talk about security and about terrorism, but the ordinary person, for whom we all have to be responsible and accountable to, should be protected from such abuse. Frankly, even this Bill is giving more powers to the police. We have seen with the police and the press that it did not stop with Leveson. It is still going on. We have seen what has happened with the police at Hillsborough and Orgreave. All this is a massive way of ignoring our responsibilities in this matter, which we are not carrying out. I agree that it is a diversion, but it is bigger than that: it is a move to get rid of any recommendation to ensure the rights of the individual against the press, in the name of the freedom of the press. I disagree with that, as we all should.
I will support the amendment. If your Lordships really want to settle it, tell the Minister to implement the law and Section 40. That was the will of this House. Let the Government now do what they were supposed to do in agreeing that legislation and carry it out in the name of the freedom of the individual.
Lord West of Spithead (Lab)
My Lords, all my experience from three years as Chief of Defence Intelligence and three years as the Minister for Security and Counterterrorism makes me realise how crucial the Bill is for the security of our nation. The Bill has been worked through now over a long period. It has had amazing input, it has amazing cross-party consensus and it is really very important. We have just had 37 minutes of emotive discussion, most of which has nothing to do with the security of our nation. I am very concerned that this amendment might well have an impact against the Bill that none of us intends. I have heard people saying, “There won’t be any difficulty”, but I am worried. If it does, that will be a problem for us. The Bill is too important for it to be delayed to a state where it is not implemented in time. I hear people saying, “That’s not a problem”, but all my experience of government and of life is that things suddenly crop up. I will be much happier knowing that the Bill has been put to bed, because our nation will then be much safer.
Lord Rosser (Lab)
The noble Baroness, Lady Hollins, has already reminded us of the cross-party agreement that committed the Government to implementing the recommendations of the Leveson inquiry. Unfortunately, the Government have not seen fit to commence Section 40 of the Crime and Courts Act 2013, even though, crucially, alongside the royal charter, Section 40 was designed to incentivise newspapers to join a recognised self-regulator. Yesterday the Government announced a public consultation on Section 40, despite the clear terms of the cross-party agreement.
There will of course be those who are suspicious of the Government’s reasons behind this consultation. Some may even feel that it is designed to give a cloak of respectability to a later decision to go back on the undertakings given and the cross-party agreement reached on Section 40. I do not intend to pursue that line. It is simply very odd for the Government now to commence consultation on whether in effect they should implement their own recent legislation, which was the subject of cross-party agreement, was passed by Parliament, and which still represents the will of Parliament. Is this to be a precedent and to become a feature, with the Government holding regular public consultations on whether they should implement legislation passed by Parliament? Where will it all end?
By the way, I do not share the view that there is not still time to resolve this matter and still ensure the very necessary and vital passage of the Bill within the required time limit. My party, with others, has played a major role in improving it considerably during its passage through Parliament. We will support the amendment moved by the noble Baroness, Lady Hollins, if it is put to a vote. There is no reason not to honour undertakings given and cross-party agreements reached on Section 40.
Earl Howe
My Lords, I first say to those who have supported the amendments in the name of the noble Baroness that I acknowledge the strength of feeling in the House on this emotive issue. As I said in my opening remarks, the Government know how important these matters are to everybody. We need a robust and workable system for media self-regulation, and resolving that is in everybody’s interest. However, I am afraid that I remain of the opinion that the Bill is not the means to achieve that. Of course I agree with the noble Lord, Lord Paddick, that the noble Baroness’s amendments are procedurally in order; that has never been in question. However, first, the scope of the Bill means it cannot do this subject justice. The amendments we are considering today concern only interception of communications and would not necessarily sit well with whatever broader solution is to follow. Secondly, and more importantly, the public consultation which the Secretary of State for Culture, Media and Sport announced yesterday provides a means for a reasoned, informed and considered public debate—
Lord Strasburger (LD)
I thank the noble Earl for giving way. I would like to share with him a direct quotation from one of the six members of the Leveson inquiry—someone with whom I spoke this morning. He said, “The consultation announced this week is just a shabby stunt, probably concocted by Paul Dacre, to defer the betrayal of the victims of press abuse—past and future—until this Bill has been safely put to bed”. I would like to offer the noble Earl an opportunity to refute that charge.
Earl Howe
My Lords, I repudiate it completely. The Government have been clear about the timescale of the consultation and have committed to respond in a timely manner. We are taking this matter with proper seriousness. It is important that everyone has an opportunity to take on board and reflect on the changes that have occurred in the years since Lord Justice Leveson made his recommendations. I say again to the noble Lord, Lord Paddick—
Lord Beith (LD)
Just to clarify this matter, can the Minister tell us when he was told that the Government were launching a consultation on Section 40?
Earl Howe
I was made aware of it at the beginning of the week, but I am also aware that it was in gestation long before that.
I say to the noble Lord, Lord Paddick, that there is no mandatory period for a public consultation. The Cabinet Office guidelines say that there must be a proportionate amount of time, and I think 10 weeks gives everybody time to look properly at the issues and to submit their views to government. In that light, and for all the reasons I rehearsed earlier, I respectfully ask your Lordships to allow the Bill to pass without these amendments.
Baroness Hollins
At end insert “, and do propose Amendments 15B and 15C in lieu—
“Civil liability for certain other unlawful interceptions
(1) An interception of a communication is actionable at the suit or instance of—
(a) the sender of the communication, or
(b) the recipient, or intended recipient, of the communication, if conditions A to C are met.
(2) Condition A is that the interception is carried out in the United Kingdom. (3) Condition B is that the communication is intercepted in the course of its transmission, by means of a public telecommunications system.
(4) Condition C is that the interception is carried out without lawful authority.
(5) For the meaning of “interception” and other key expressions used in this section, see sections 4 to 6.”
“Interception without lawful authority: awards of costs
(1) This section applies where—
(a) a claim is made under section (Civil liability for certain other unlawful interceptions) against a person (“the defendant“), or a claim is made for misuse of private information arising from an interception of a communication carried out before the date on which section (Civil liability for certain other unlawful interceptions) comes into force,
(b) the defendant was a relevant publisher at the material time, and
(c) the claim is related to the publication of news-related material.
(2) If the defendant was a member of an approved regulator at the time when the claim was commenced (or was unable to be a member at that time for reasons beyond the defendant’s control or it would have been unreasonable in the circumstances for the defendant to have been a member at that time), the court must not award costs against the defendant unless satisfied that—
(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator, or
(b) it is just and equitable in all the circumstances of the case to award costs against the defendant.
(3) If the defendant was not a member of an approved regulator at the time when the claim was commenced (but would have been able to be a member at that time and it would have been reasonable in the circumstances for the defendant to have been a member at that time), the court must award costs against the defendant unless satisfied that—
(a) the issues raised by the claim could not have been resolved by using an arbitration scheme of the approved regulator (had the defendant been a member), or
(b) it is just and equitable in all the circumstances of the case to make a different award of costs or make no award of costs.
(4) This section is not to be read as limiting any power to make rules of court. (5) This section does not apply until such time as a body is first recognised as an approved regulator.
(6) Subsections (1) to (3) shall only apply to a claim issued after this section comes into force.
(7) For the purposes of this section “approved regulator”, “material time” and “news-related material” shall have the same meaning as in section 42 of the Crime and Courts Act 2013, and “relevant publisher” shall have the same meaning as in section 41 of that Act.””
Baroness Hollins
At end insert “, and do propose Amendments 339B and 339C in lieu—
“(2A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) come into force on the day following that on which this Act is passed.
“(3A) Sections (Civil liability for certain other unlawful interceptions) and (Interception without lawful authority: awards of costs) are repealed at the end of the period of six years starting with the day on which they come into force.”
Investigatory Powers Bill
Tuesday 15th November 2016
(8 years, 3 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)
15:17 - The House divided: - Ayes: 295 / Noes: 245 - Question accordingly agreed to.
The Solicitor General (Robert Buckland)
I beg to move,
That this House disagrees with the Lords amendments 15B, 15C, 338B, 339B and 339C.
Two weeks’ ago, we considered Lords amendments to the Investigatory Powers Bill. In accepting unopposed all amendments that relate directly to the subject matter of the Bill, this House demonstrated the value we all place on legislative scrutiny in the other place, and recognised the many improvements made by their lordships to this important legislation. We welcome the spirit of cross-party co-operation on this crucial matter. I would like to put on record again my admiration for the approach taken by all parties in both Houses in contributing to this landmark Bill.
Together, we have created a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. We have strengthened the authorisation processes and safeguards around the use of those powers, and we have created a powerful new body that is responsible for the oversight of those powers.
During that debate, however, we also gave thorough and anxious consideration to the amendments tabled by Baroness Hollins, supported by others, which sought to use the Bill as a vehicle to change the law in relation to the regulation of the press. The amendments would introduce a presumption that a court should award costs against a publisher in cases of unlawful interception if it is not part of a recognised regulator, regardless of whether or not it won a case.
Simon Hoare (North Dorset) (Con)
Did my hon. and learned Friend see the article in The Times last week by the noble Lord Pannick? He is not necessarily always a friend to the Government on these matters, but he very clearly said that the Lords amendments should be rejected, that this was an important and well thought out Bill, and that the sooner we got on with it, the better.
The Solicitor General
I am very grateful to my hon. Friend. Lord Pannick played an important part in helping to refine other parts of the Bill, most notably on legal professional privilege. Lord Pannick said that we
“should reject the Lords’ attempt to hold such an important bill hostage on issues of press regulation that are far from central to the bill’s purposes.”
The Bill does not, and never was intended to, provide for the regulation of the press. It is about providing vital tools for our law enforcement and security and intelligence agencies. The Lords amendments we are considering today differ slightly from those we debated last time. The noble Lady revised her proposal to remove the link to clause 8 in order to avoid any risk that it could have an impact on the provisions already in the Bill. She also added a six-year sunset, which she suggests means that the change could be allowed to fall away after the process of reform of press self-regulation is complete. I thank the noble Lady for her efforts to minimise the collateral impact of her amendments and I recognise the goodwill she is showing in doing so, but I am afraid that the fundamental problem remains. The amendments are simply not appropriate at this time, or in this legislation.
The public consultation announced by the Secretary of State for Culture, Media and Sport, who is on the Front Bench today, speaks directly to the concerns of those supporting the amendments. It provides everyone—whether a publisher or a victim of phone hacking, a parliamentarian, journalist, police officer or a member of the public—with their rightful opportunity to contribute to the debate on the issue of press self-regulation, which affects each and every one of us in this country. The consultation document not only sets out the position but asks a series of questions to consultees. The questions are wide-ranging and allow a number of options to be explored. As is proper with a consultation, they allow consultees to express their views fully and to provide evidence to support their contentions. A number of options are set out. It is not simply a question of commencement, but whether part of section 40 should be commenced to afford protection to members of a recognised regulator, whether to not apply the particular provisions to publishers outside a recognised regulator, and to consider whether section 40 should be fully commenced, repealed or kept under review. This is an important consultation. It allows adequate time for people who are either well versed in the issues relating to the Leveson process, which occupied this House some years ago, or come new to the issue and want to have their say, bearing in mind the passage of time since the introduction of section 40 pursuant to the Crime and Courts Act 2013.
The Government have been absolutely clear that they recognise the very serious intrusion and anxiety suffered by victims of press misconduct.
Pauline Latham (Mid Derbyshire) (Con)
Will my hon. and learned Friend tell the House what the double lock for the most intrusive warrants will achieve, and why it is so very important?
The Solicitor General
My hon. Friend is right to remind the House about one of the truly innovative parts of the Bill. The mechanism proposed by Government was refined in Committee by representatives from other parties, as well as the Government. It allows for not only a politician, a Secretary of State, to make a decision about authorisation, but for that decision to be then reviewed by a judge who will apply principles of judicial review—not just Wednesbury unreasonableness, but principles relating to proportionality and human rights matters that are properly engaged in considering what we accept are serious intrusions when it comes to this type of warrantry.
The Bill is unprecedented and world leading. The double lock represents the Government’s commitment to maintaining the balance between the need for the security and intelligence agencies and other investigative agencies to be fleet of foot when it comes to investigating serious crime. It will ensure that, with judicial input, the interests of privacy and human rights are kept very much to the forefront of these decisions.
On press misconduct, we must ensure that victims have appropriate means of redress. The situation, however, is complex and the overall solution is far from clear. We must do our utmost to avoid unintended consequences of what I accept are well-intentioned actions.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. and learned Gentleman was referred earlier by the hon. Member for North Dorset (Simon Hoare) to the words of Lord Pannick. Does the Minister also agree with Lord Pannick that there can be no doubt that the amendments are within the scope of the Bill, which was one of the Government’s previous objections?
The Solicitor General
The hon. and learned Lady will know that the interpretation of scope taken in the other place is somewhat different from the one both she and I understand in this place, having both served on the Public Bill Committee. I pay tribute to her for the considerable number of amendments she tabled in this House. I think we have to accept that the Lords’ interpretation allowed for the introduction of these amendments. The Government rightly had issues with some of the technical deficiencies in them. I paid tribute to the efforts made by Baroness Hollins to amend the provisions to meet some of the Government’s concerns. However—this is why we seek to reject the amendments—they have no place in a Bill that relates to the regulation of investigative powers. This is all about national security and dealing with crime, whether that be child abuse, trafficking, drug dealing or any other criminality we want to deal with in society. That is why the amendments are not only out of place but pre-empt the outcome of the consultation launched by my right hon. Friend the Secretary of State.
Mr Jacob Rees-Mogg (North East Somerset) (Con)
Would my hon. and learned Friend not go further and say that a Bill on national security is precisely the wrong place for restrictions on the press, as it would make it look as if we were really trying to hit them hard?
The Solicitor General
My hon. Friend makes an important point. The Bill is all about balance and the importance the Executive attach to the way they seek to interfere or intrude into the private lives of individuals and to setting out clearly the criteria that must be met before they can act. It would be wrong to take any measure that sends a message that the Government wish to ride roughshod over the interests of individuals and freedom of speech. He knows that the consultation launched two weeks ago will deal with the very issues that have caused him concern over a number of years, although it would be wrong for me to pre-empt the outcome of that open process.
Richard Drax (South Dorset) (Con)
Does my hon. and learned Friend agree that phone hacking, which we hear so much about, particularly from those who support these press rules, is already a criminal offence for which people can go to jail? In addition, we have the libel laws, so anything the press does, in a major regard, is already very much covered.
The Solicitor General
My hon. Friend is absolutely right to remind us that where we have existing mechanisms —and the criminal law is, of course, there—they must be used. To be fair to both sides of the argument, the issues about redress of grievance and the mechanism of press regulation, which he knows from his experience as a journalist has existed for years, are important ones. I know that he would be as anxious as anybody in the House to make sure that, rather than the focus being on celebrities and the like, ordinary people who end up as victims—chiefly of inaccuracies reported in the media—have a reasonable and cost-effective means of redress. He is absolutely right, however, to talk about existing mechanisms and the criminal law, and of course the criminal law was used in a significant investigation by the Metropolitan police that resulted in several convictions.
Damian Collins (Folkestone and Hythe) (Con)
Does my hon. and learned Friend agree that, in respect of the consultation that the Secretary of State for Culture, Media and Sport has set out, we have to get the balance right between respecting the freedoms of the press and the rights of innocent people who have never sought publicity but who find themselves on the wrong side of an investigation and need a low-cost method of arbitration to bring their grievances forward?
The Solicitor General
My hon. Friend the Chair of the Culture, Media and Sport Committee puts it more succinctly than I did, and he is absolutely right about the balance to be struck and the need for ordinary people who might be the victims of misconduct to have access to meaningful redress of grievance, so I am grateful to him. Having been here in the previous Parliament, he and I will remember debating the Leveson process and the aftermath of the findings of Sir Brian Leveson.
Turning back to the consultation to which my hon. Friend referred, the Government have set out a clear timetable, and we have committed to responding to that consultation in a timely manner.
Mr Jim Cunningham (Coventry South) (Lab)
Who exactly is going to be consulted?
The Solicitor General
It is a public consultation and invites comment from all members of the public, from whatever corner of the country they might come and whatever interest—it might be no interest—they represent. I am grateful to the hon. Gentleman for giving me the opportunity to emphasise the important point that the Government would welcome as many responses as possible to the questions posed in the consultation—and not just responses but evidence to support the contentions made by those who take part.
Damian Collins
I should note that the Select Committee will be taking evidence from victims of phone hacking and press representatives and will makes its own representations to the Government through the consultation process.
The Solicitor General
The Government warmly welcome that approach. The work of the Select Committee—indeed all Select Committees—is invaluable and carries real weight, and the Government will consider it carefully when the consultation responses are assessed by the Secretary of State and those who serve her in the Department.
After the Government’s response, there will be ample opportunity for the House and the other place to consider and debate it in due course. As I said earlier, however, now is not the time to do so. The Bill, which we have all recognised is so important to our collective security, should not, with the greatest of respect, be used to force that debate.
Ms Diane Abbott (Hackney North and Stoke Newington) (Lab)
I am glad to rise in support, once again, of these very important amendments. I believe that any member of the public who just heard the Solicitor General’s speech will be puzzled about the Government’s resistance to implementing an aspect of Leveson that they agreed to in principle some time ago.
Labour fully supports the Lords amendments and has consistently and genuinely called for the Leveson recommendations to be implemented in full. A new system of independent self-regulation was agreed by the three main political parties in 2013, following extensive consultation with victims of press intrusion, and Labour believes that the promises made to them should be honoured. If the best that the Government can come up with is that hoary old doctrine of unripe time—“It’s a good idea but not now”—they must be a little desperate. It is disappointing that we have to speak to the amendments yet again to get the Government to honour their agreements. It is a breach of the cross-party agreement, and breaks promises made by the House to the victims.
Lords amendment 15B would not be necessary had the Government fulfilled their stated commitment to implement section 40 of the Crime and Courts Act 2013, which they have promised to do innumerable times. Happily, the amendment goes further than section 40 and would not require ministerial approval, meaning that it would automatically implement section 40 in relation to phone hacking claims. This would restate the clear intention of Parliament as previously expressed in 2013. Ministers have talked about riding roughshod. The Society of Editors, the National Union of Journalists, with the backing of the TUC, and many others concerned with the freedom of the press, have said that there is the potential to ride roughshod over freedoms.
Mr Rees-Mogg
Will the hon. Lady explain one point about the amendment? Why should the press be punished if it is not in fact guilty of phone hacking?
Ms Abbott
If the hon. Gentleman will forgive me, I will complete my next paragraph and then address his point.
The ability of journalists to protect their sources is a vital part of a functioning democracy. It means whistleblowers, important sources and others can divulge matters sometimes of the utmost public interest—there is a host of whistleblowers in the NHS, to take just one example, and there have been important whistleblowers in almost every area of public life. However, we have to once again flag up the powers in the Bill—although it is a Bill we support—and say that simply being able to identify internet records without ever examining the content would potentially allow the identification of whistleblowers in many cases. This represents a potential infringement of civil liberties, a riding roughshod over civil liberties and a riding roughshod over the freedom that ultimately benefits us all.
As for the point raised by the hon. Member for North East Somerset (Mr Rees-Mogg), if the Government do not want to implement this aspect of Leveson and if they do not think it necessary, why have they on so many occasions, including to the victims themselves, promised to do so?
The claim that these measures will impinge on the freedom of the press is factually inaccurate. Instead, they would allow for a low-cost and timely mechanism for redress on behalf of those who have been or believe themselves to have been mistreated or maligned by the press. I repeat the point that was made earlier: this is not about celebrities, but about ordinary people who through no fault of their own get caught up in the maw of the tabloid press and have to put up with seeing their picture appearing on the front page of tabloid newspapers day after day—often on the basis of misinterpreted tips from the police force. These people need to be able to get redress. That is why we support the amendments.
This amendment 15B, which the Government intend to vote down, was proposed and improved in the House of Lords by the Cross Bencher Baroness Hollins and overwhelmingly passed. It would implement the same provisions as are contained in section 40 of the Crime and Courts Act 2013 in respect of claims against media organisations over phone hacking and other unlawful interception of communications. While there is a free-for-all by ignoring Leveson and a failure to implement section 40, the most irresponsible practices of the press, which can ruin the lives of ordinary people, will go unchecked without any recourse—except for celebrities and the ultra-rich, who can afford libel lawyers.
It was always envisaged that as soon as pending legal proceedings were complete, we would see the second phase of the Leveson inquiry. The Minister had a lot to say about the consultation. Does he remember that Leveson lasted over two years and cost £5.4 million in total? Having spent so much money and so much time—and particularly the time of so many distinguished lawyers—why on earth do we need another consultation? Opposition Members believe that this is merely a stalling mechanism, and we think that the Government’s continuing to stall on this issue is disrespectful of, and inappropriate for, the ordinary victims of phone hacking.
Richard Drax
The hon. Lady mentions phone hacking again, so let me remind her that phone hacking is an illegal act. People go to jail for it. Will she acknowledge that this is already a criminal offence?
Ms Abbott
It may be a criminal offence, but the entire House knows that time after time, tabloid editors and their staff engaged in phone hacking, betting that the people whose privacy was being infringed would not have the money or the knowledge or the social capital to take them to court.
This consultation is the Government’s most recent attempt to kick this issue into the long grass. The victims of phone hacking—many of whose lives have been ruined—are being forced to relive the traumatic experiences of Leveson. The understanding was that so many millions of pounds were spent and so many top-flight lawyers engaged in order to arrive at a conclusion on these issues—not so that the Government could continue to stall.
Joanna Cherry
Does the hon. Lady agree that the virtue of Leveson was that it was an inquiry held in public with an independent judge in the chair? The problem with the Government’s consultation is that it will effectively put politicians—and Government politicians—in the chair to re-run these issues in private?
Sir Edward Garnier (Harborough) (Con)
I rise to support my hon. and learned Friend the Solicitor General in his resistance to the Lords amendments, which was based on principle rather than over-excitement or hyperbole. It seems to me that the motion put forward in the other place—no doubt well intentioned—does not entirely cover the justice of the case. Before I move on to the main part of my argument, I would like to declare an interest, in that I have some 40 or 45 years’ experience as a member of the media and libel Bar.
The first Lords amendment proposes a new clause to be inserted after clause 8, and I am particularly disturbed by one or two aspects of it. I fully appreciate that as a matter of policy and politics, we in the House, the Government and Parliament generally frequently make use of what I would call the nudge system of trying to encourage people to be of better behaviour. We introduce laws that seek to persuade people not to behave in an antisocial or criminal manner. Broadly, it is the use of incentives to encourage better behaviour, and I have a suspicion that that is what is behind the Leveson report and their lordships’ proposed new clause.
In some respects, the provision is in the wrong place. The Bill is about investigatory powers and although I accept and applaud the ingenuity of those who introduced the new clause in the other place, I believe that introducing it into this important Bill, though understandable, is not the best place for them to have done so. They risk imperilling the policy behind the Investigatory Powers Bill without advancing their own cause in respect of those grievously and adversely affected by phone hacking.
While the proposed new clause is, on the face of it, of course related to phone hacking, it seems to me that it is not limited to phone hacking. If we look at subsection (1)(b), we see that the defendant in question needs to be “a relevant publisher”—that is fair enough—but if we look at subsection (1)(c), we find that it deals with claims
“related to the publication of news-related material.”
It may be that the news-related material has come as a consequence of phone hacking, and as my hon. Friend the Member for South Dorset (Richard Drax) has correctly pointed out, phone hacking is already a crime and the criminal justice system is already able to get a grip on it. When it comes to the consequences of hacking someone’s phone, there could be a public interest defence to the criminal charge of phone hacking. The newspaper might publish material that a claimant says is in breach of his rights of privacy or a misuse of private information or a breach of confidence, or it could amount to a defamation. None of those additional civil claims is covered by this nudge or incentive proposal. I think that we need to be wary lest a legitimate exposure of misconduct on the part of, say, a public authority or a person in the public sphere might be inhibited by this no doubt well-intentioned new clause.
The first point that I would make to my hon. and learned Friend the Solicitor General is that subsection (1) of the new clause does not limit the nudging or the incentives to the misdemeanour of phone hacking. It goes beyond that, and in doing so, it seems to me, could put a defendant newspaper or publisher in danger of being penalised for doing what might turn out to have been the right thing. As I said a moment ago, it might well be that the initial phone hacking was on the face of it criminal, but there might be a defence for it, and, moreover, the product—the fruit—of that phone hacking, legitimised because it was in the public interest, might lead to a further claim in a cause of action under civil law.
The defendant publisher might win the case, because what had been written might be true, and it might not be against the public interest to publish the confidential information because it had exposed iniquity or something of that nature. The defendant newspaper—if it is a newspaper—should therefore be entitled to win the case and defeat the claim. Under the new clause, however, although the claim had been defeated and the publishing defendant had won the case, the defendant would be required to pay the undeserving claimant’s costs as well as its own because the defendant might not be a member of some approved regulator.
Joanna Cherry
I am listening with great care to what the right hon. and learned Gentleman is saying. May I suggest to him that the situation that he has just described is covered by the proviso in subsection (3)(b) of the new clause proposed in Lords amendment 15C, which states that the court may take account of whether
“it is just and equitable in all the circumstances of the case”
to make a different award of costs? May I suggest that in the circumstances that he has described, the “just and equitable” exception would kick in, and a newspaper that had a valid defence and had revealed iniquity as a result of hacking could pray it in aid?
Sir Edward Garnier
It might if both new clauses became law, but it might not if the new clause to which the hon. and learned Lady has referred did not become law, and we were left with only the one with which I am dealing.
My second point is this. Why should a well-intentioned and successful defendant publisher have to risk the expense of successfully defending a claim and then having to pay the costs of the unsuccessful claimant? That strikes me as unjust. The House is famous for passing laws that are laden—replete—with unintended consequences. It seems to me, however, that when an amendment paper contains a proposal that will clearly lead to a problem—although I am not suggesting that it would be an insoluble problem—we would be foolish not to warn the Government against it. I am delighted to see that the Government seem to have mustered their forces and thinking processes in such a way that an unjust law will not be passed.
When I spoke in the House following the publication of the Leveson report, I was sufficiently pompous and self-confident to rebuke Members who thought that the inquiry, and the report that followed it, meant that there would be state regulation of the press. There will be no such thing as a consequence of the Leveson inquiry. However, I feel that I am entitled to warn Members who, like me, thoroughly disapprove of illegal phone hacking not to assume that once the words “phone hacking” have been uttered, that permits the House, the Government and the courts to rain down on successful, innocent and well-intentioned defendant publishers the burden of the costs of successfully defending a claim.
It should be borne in mind that defendants do not choose to be defendants. Of course they choose to publish the material that they have got hold of, but it is the claimant who feels obliged, or makes the choice, to sue the defendant. To be sued as a defendant is tedious enough, but to be sued as a defendant, to win, and then to be required to pay the costs of the unmeritorious claim must surely constitute even more of a punishment.
Sir Oliver Letwin (West Dorset) (Con)
Is there not another choice that the media can make? Can they not choose to subscribe to a compliant regulator and thereby avoid the need for all the regulation and legislation that we do not want to see in the Bill?
Sir Edward Garnier
Of course I understand what my right hon. Friend has said. He is one of the most sophisticated proponents of the “nudge” or incentive system of lawmaking, and I salute him for that. I sometimes wonder, however, whether it is a good idea to use the force of what are essentially the punitive elements of the legal system to encourage innocent defendants to pay the costs of unmeritorious claims. Yes, in a perfect world we would all settle our disputes, and people would not even provoke disputes in the first place; but to be compelled, on penalty of having to pay out large sums in legal costs, to join an organisation of which one either does not approve for one reason or another, or does not wish to join for one reason or another, strikes me as unjust.
I have been a victim of, shall we say, stupid conduct by the press. It is very annoying. I have seen others, not only my friends and colleagues but people for whom I have acted, having to deal with the misconduct of the media. But I would rather have a system which recognised justice—
Lyn Brown (West Ham) (Lab)
Does the right hon. and learned Gentleman not see a difference between himself—as he has already told us, he is a leading advocate at the criminal Bar dealing with these matters on a day-to-day basis to earn his crust—and someone who does not have those advantages and who is caught in the same snare?
Sir Edward Garnier
I do not wish to be rude to the hon. Lady, but I did not say any of those things. I am not a leading member of the criminal Bar. I happened for some little while to be a member of the media and defamation Bar, which may be a distinction without a difference as far as she is concerned. [Interruption.] She may disagree with me—she may disagree with me vehemently—but what we are trying to do is to pass good law. If my colleagues on the Front Bench, and those around me, disagree with me, fine: go ahead and disagree with me.
Bill Wiggin
I absolutely disagree with my right hon. and learned Friend. I have been sitting here listening to him carefully, but I cannot think of any other industry that does not offer any sort of guarantee. If people make faulty washing machines, they replace them, but if they publish stories about people, they have already made their money by the time they end up being sued, and that is why the papers have to bear some of the cost.
Sir Edward Garnier
My hon. Friend’s intervention demonstrates to me that I have not made myself clear. What I am suggesting is that it is wrong for a claimant who has lost his case to demand the costs from the successful defendant. I am not suggesting that if I make a faulty washing machine, I should not be liable, under law or morally, to put the matter right. However, if I have made a good washing machine, the fact that my hon. Friend does not like the colour of it, or the fact that it revolves in any number of ways—[Interruption.] I am in danger, Madam Deputy Speaker, of reducing the level of the debate to something that it should not be. I will stop now, because I think I have made the points that I wish to make with sufficient clarity. Some will agree with me and some will not, but I urge the Government to be very wary about passing unjust laws for very well-motivated purposes.
Several hon. Members rose—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. Before I call the hon. and learned Member for Edinburgh South West (Joanna Cherry) on behalf of the Scottish National party, let me say that we have 19 minutes left in this very important debate and I have noticed several accomplished and learned colleagues attempting to catch my eye. I know they are as capable of making a good argument in three minutes as in 15 minutes, and I implore them to take the former course.
Joanna Cherry
I rise to support the shadow Home Secretary and her motion to accept these amendments. I will keep my comments brief. I will not go into the Scottish angle because I covered that in some detail last time.
The other place is clearly seeking to use these amendments to bring pressure on the UK Government to bring section 40 into force. The SNP is happy to lend its support to that effort, particularly as these amendments would afford protection and legal redress for those who suffer as a result of the most egregious sort of interception without legal authority when phone hacking is carried out by newspapers. Those who have not hacked, do not hack and do not intend to hack have nothing to fear from these provisions. Contrary to what has been said in the newspapers by many who advocate on behalf of wealthy newspaper proprietors and contrary to what has been said by some Government Members, there is a get-out clause in these provisions where a newspaper is sued unfairly and unjustly, and that is the just and equitable exception. We have to trust that the courts will implement that properly, as we trust them daily to implement justice and equity.
In the other place Baroness Hollins pointed out what this is really about. A widespread criminal conspiracy involving more than one newspaper group lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry, which came to conclusions that were supported cross-party in this House. The Government committed to implementing them; they are now failing to do so. As I said in an intervention, they are seeking to replace the public semi-judicial inquiry that was Leveson with a consultation in which the Government will consider proposals behind closed doors without the benefit of submissions and evidence being given in public, and that is not right.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Does the hon. and learned Lady recall that the reason we reached the agreement we did was a determination that politicians should have no role in this, so does she share my frustration that we are here again in November 2016 still discussing this?
Joanna Cherry
I agree. I was not here when these matters were previously discussed in this House but I followed that closely and it was all about taking politicians out of the mix. The Government’s consultation is putting politicians into the driving seat—and Government politicians at that. That is exactly what many of us did not want to happen, and it is what Leveson said should not happen.
I support these amendments because they now stand alone and do not impinge on the other provisions of the Bill. As Lord Pannick said in the House of Lords, these amendments are now in scope. They are supplementary to what is there already and they do not detract from the security issues in the Bill. I believe these two points meet many of the objections put forward by Ministers.
The amendments are on point and relate to the subject matter of the Bill because they deal with the consequences of unlawful interceptions of communications. At the risk of tooting the SNP’s trumpet too often, I simply remind the House again that new clause 8 came into the Bill as a result of a suggestion made by me and my colleague in the Bill Committee, my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands).
These amendments will apply to new and old phone hacking claims alike, but they are not objectionable, as being retrospective, because in considering how to deal with costs the court must look to the issue of whether the defendant was registered with an approved regulator at the time when the claim was commenced.
I believe the remaining objections to the amendments are misplaced. If the Government are concerned about these amendments causing delay to the passage of this important Bill, all they need to do is bite the bullet and implement section 40 and then we can forget about the amendments, and I invite them to do that.
Bill Wiggin
In all the years I have been here, I have never before found myself in agreement with the hon. Member for Hackney North and Stoke Newington (Ms Abbott), so I am deeply unhappy about this debate and the fact that I have been put in this position.
I also feel very uncomfortable with some of the things my hon. and learned Friend the Solicitor General has said, because I know that in his heart he, like me, would like to see low-cost arbitration. That is why I am so pleased with the Culture Secretary and the wonderful steps she has taken to keep people like me onside—people who passionately care about redress for ordinary people. This is the 21st century; it is the age of information and that is why the quality of information is so critical. We as a Government cannot police the media, and I believe my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) understood that when he put forward his royal commission proposals, but we must do our bit to ensure that the quality of information is good enough, and at the moment it is not.
Richard Drax
What plans does my hon. Friend have for the internet, which is not governed by these measures and on which reprehensible things are said every second of every day?
Bill Wiggin
The internet is not policed and that is as it should be, but my hon. Friend has to understand why people have stopped reading newspapers and take their news from the internet now. There is a choice, and the choice they can make is to favour the sources they believe in. That presents a different set of challenges to the individual than having a quality media.
I absolutely believe in the freedom of the press, but not in the irresponsibility of the press. That is why I welcomed the conclusions to the Leveson inquiry and why I welcome the Secretary of State’s inquiries. We have to get the balance right between policing and responsibility, and while this Bill is about security and information, I do not agree that it is an inappropriate place to bring forward this debate. Given what the Government have agreed to do, I think we should take full advantage of that, but we must remember that the people who are most likely to contribute are those who write for a living and are therefore most likely to be journalists. It will be difficult for the Government to maintain that balance of common sense, but I have absolute confidence that they will achieve it.
Damian Collins
First, I echo what Members have said across the House about the importance of a free press and a press both acting freely and speaking with confidence to the powerful. We have seen the role of British investigative journalism in taking on corruption in international sport, where it could without fear or favour pursue its investigations and therefore brought down powerful and mighty people. We do not want that to be jeopardised in any way. At the same time we should be conscious that if we just implement the section 40 provisions as they currently stand, some of the biggest victims would be small newspapers and magazines that have never been part of these bigger things. We should also at this time reflect on the nature and purpose of section 40. That is why I believe the Secretary of State is right to have a further consultation.
The idea was not necessarily that the section would be required; the hope was that the press would seek recognition through a recognised authority and have a proper, robust system of self-regulation recognised by the press recognition panel. The press have decided not to do go down that path. Many of them have set up the Independent Press Standards Organisation as their own regulator. They do not wish to see recognition, which in itself would solve the problem; if IPSO had sought recognition we would not be having this debate about costs and extra damages, but it has not sought that. So this should be a time to see whether IPSO can become recognised, with public confidence, as being Leveson-compliant, meeting the standards and providing, as my hon. Friend the Member for North Herefordshire (Bill Wiggin) said, the right level of proper low-cost arbitration. Section 40 is really about saying there must be a robust system of self-regulation and low-cost arbitration. If that cannot be put in place, the alternative is someone going to court and the industry having to pick up the costs in the courts, rather than paying for the arbitration system.
Sir Oliver Letwin
Does my hon. Friend agree that the demands that the nation puts on the media would be satisfied if IPSO were to establish the low-cost arbitration, even if it did not formally seek recognition? Does he agree that most Members would be satisfied with that as an answer?
Damian Collins
My right hon. Friend makes an incredibly important point. If such an accessible arbitration system were to be established—which would involve going further than the pilot scheme—it would be churlish of the House to ignore that progress and to insist on the point of principle involving going before the recognition panel. This matter should be pursued, and that is why it is right to use the consultation process to explore what more can be done to ensure that IPSO is compliant, that it offers the access to low-cost arbitration that the public want, and that it can win public respect as an effective means of self-regulation for the press.
Edward Argar (Charnwood) (Con)
I rise briefly to express my agreement with the Solicitor General and particularly with my hon. Friend the Member for Folkestone and Hythe (Damian Collins). A vibrant, responsible local press that is able to speak freely and report stories within the law is a pillar of our democracy. It is something we should be proud of and always strive to protect. What concerns me, and the press, is the potential for the press to have done nothing wrong—having not misreported a story or wronged an individual—and yet to find itself on the receiving end of costs that threaten its existence.
As my hon. Friend the Member for Folkestone and Hythe has eloquently set out, no one disputes that there should be a way for people who have been genuinely wronged by the press to have access to affordable and effective redress. It is beyond doubt that this must be addressed. To that end, I fully support the approach put forward by the Solicitor General and my right hon. Friend the Secretary of State in undertaking a further consultation to see whether a way forward can be found that strikes the right balance. The Secretary of State has adopted an open, measured, sensible and appropriate approach to implementing our clear determination to provide redress while safeguarding the freedoms and viability of our hugely precious local press.
Mr Rees-Mogg
This is an absolutely dreadful amendment and it should be thrown out, rejected and sent back to the House of Lords. It is fundamentally wrong. It seeks to punish those who might be innocent and to fine them for telling the truth and for saying things that people in power do not like. This amendment goes to the heart of our free press, and it should be thrown in the bin. IMPRESS is already an organisation of ill repute, founded, funded and paid for by somebody who is known to us only because of his misdeeds. A degenerate libertine has provided all the money for IMPRESS, which only the most junior newspapers will sign up to. It is a dreadful body.
We should maintain the freedom of our press to help us with our liberties. We have only to look at the policeman who went to prison a few weeks ago. He successfully sued the press in the 1990s, but it turned out that he was in fact a child molester. Whenever we put constraints on the press, we help the powerful to get away with misdeeds. This House should stand up for freedom. It should stand up for liberty and it should reject the unelected House of Lords trying to prevent scandal from being reported freely.
Richard Drax
It is a pleasure to follow my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), who was most eloquent. I have a disadvantage in following such eloquence with a short speech. I believe that I have just a few minutes left. I must declare an interest in that I was a journalist for 17 years. Perhaps I saw a little bit of the worst, but most of it was good. It is the local and regional press—the majority of our press today—that I am concerned about. It simply will not be able to take the risk of reporting at local level, albeit accurately and fairly, lest it should incur a costly exercise in court, and that is not acceptable.
In the first week of my career, the editor called me in and said, “Richard, you cannot go far wrong if you report fairly and accurately.” I agree with other hon. Members who have said that the message to the editors must be that they should report fairly, accurately and truthfully. Truth is the biggest sword of defence for the press. As my editor said: if in doubt, leave it out. I implore all editors who want a free press, as I and many other hon. Members do, to behave honourably, truthfully and in good faith. If they cannot report something that they long to report because they know it will result in a huge sale of newspapers, I suggest that they delay publication until they have the facts.
The Solicitor General
We have heard many heartfelt contributions to this debate from Members on both sides of the House and I recognise the strength of feeling on this issue. Time does not permit me—
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. I think the hon. and learned Gentleman is seeking the leave of the House to respond to the debate.
The Solicitor General
I certainly am. I seek the leave of the House to respond to the debate, but time does not permit me to say much more.
Madam Deputy Speaker
I congratulate the hon. and learned Gentleman on his excellent brevity.
Question put,
Madam Deputy Speaker (Mrs Eleanor Laing)
Order. If Members are leaving the Chamber following the previous business, I hope that they will have the courtesy to be quiet while we begin the next business.
Investigatory Powers Bill
Wednesday 16th November 2016
(8 years, 3 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I will not detain the House for long. I want merely to note my gratitude to the noble Baroness, Lady Hollins, for choosing not to press her amendments on press regulation again today. Her efforts and those of her supporters have successfully raised the profile of this issue and made a clear signal of her intent. She can rest assured that this has not gone unnoticed by the Government. I say that with due emphasis: the proof of it lies in the public consultation on this issue announced by my right honourable friend the Secretary of State for Culture, Media and Sport. That consultation provides, in my submission, the right means for interested individuals and groups—including, I trust, the noble Baroness, Lady Hollins, and other noble Lords—to have their say. It is a serious consultation, designed to take the process forward in a considered fashion. The Government have committed to respond promptly, following its conclusion.
Therefore, in moving this Motion, I hope that noble Lords who supported the noble Baroness, Lady Hollins, at earlier stages will recognise that their efforts and their arguments on these matters have not been wasted. I beg to move.
Lord Lipsey (Lab)
My Lords, the Commons has spoken and we must, as usual, bow the knee, even if it took us twice to get round to it this time. I take some consolation from what the Minister said, because at least the consultation document is something concrete which has an end date. However, we know that Governments can take an awfully long time after the end date of consultations deciding and announcing what they are going to do, and the present situation is very unsatisfactory. Section 40 sits there in the ether, with nobody knowing whether it is in or out, and we get rumours in the papers about the Government’s purported attitude. This is not how this matter should be dealt with; it should be dealt with quickly.
If anyone thinks there is no problem now with the press post-IPSO, they should read the coverage of what has happened to poor Prince Harry and his girlfriend. With the privacy issues involved in that, do they really feel that this shows—although there are, no doubt, two sides to the case—that the press has put its badnesses from the past behind it? I submit that they should not. This is a matter that requires urgent treatment—although I agree, not in the Bill.
Baroness Hollins (CB)
My Lords, I should like to acknowledge the thoughtful contributions to debate on the amendments in my name and that of my noble friend Lady O’Neill, both on Report and at Third Reading. These amendments aimed to hold the Government to account over their failure to commence Section 40 of the Crime and Courts Act 2013, a key element of the post-Leveson inquiry cross-party agreement. The vote on Report, on what was only the second day back after the Recess, was passed with a majority of 102. I am told that this was the joint fourth highest majority in the House this Parliament. I was very grateful, in particular, to noble Lords on the Conservative Benches who either voted content or spoke in support of what we seek to achieve. The size of this majority made the Government take note and I welcome that acknowledgement by the Minister today.
Just before the Lords reasons were debated in the other place, the Government, perhaps fearing a rebellion among their own MPs, attempted to head this off by announcing a sudden and short consultation on whether to commence Section 40 at all. The idea of a consultation is somewhat astonishing for three reasons. First, Section 40 was enacted by Parliament three and a half years ago, and there was no doubt then that the Government would do anything other than follow the normal constitutional practice of commencing a law passed by Parliament, especially since the terms of Section 40 were part of a formal agreement signed by the three party leaders at the time.
Secondly, the consultation will consider whether the Government should cancel the promised Leveson part 2. Part 2, as has already been agreed, is intended to look into allegations of police corruption and corporate press cover-up underpinning the hacking scandal, the reporting of Hillsborough, why police and public officials were convicted of taking bribes from newspapers, police co-operation over scores of controversial convictions and much more.
Thirdly, two important conclusions of the Leveson report were that the era of political deal-making between politicians and the press must end, and that the Government should have no future influence over press regulation. My concern is that this cross-Parliament agreement may have been turned on its head by a consultation which has to consider whether to listen to the press lobby or listen to the ordinary victims of press abuse, who are relying on Parliament to give them the protection they need. This is relevant to noble Lords’ contributions to this consultation.
In the Commons, the Government suffered something of a rebellion, with a number of Conservative Members speaking out for Section 40, but they still sent the Bill back to us. On 2 November we asked the Commons to think again and they did so yesterday. The impression given by some in the other place was that I was raising this issue to protect celebrity victims of press intrusion or their families. Of course, celebrities, the Royal Family and our judiciary are entitled to a degree of protection from an intrusive tabloid press but, like the newspapers, many celebrities have expensive lawyers to protect them. I am pleased, therefore, that what I heard in debate was concern mainly for the vast majority of victims of press intrusion who are ordinary members of society, usually previously unknown, who do not have access to the remedy they need to protect themselves from unethical and unlawful newspaper conduct. People such as the Dowler family, Christopher Jefferies and the McCanns—I have met these and many more—whose privacy has been invaded and against whom huge injustices have been perpetrated, all in the interest of selling newspapers.
I may be unelected but I seem nevertheless to represent a constituency of vulnerable people whose stories are not being heard by some of those who, although elected, seem to prefer to defend big media. I am not seeking to punish; I am waiting for the regulatory change that the Leveson inquiry showed is needed, as well as a culture change that would require the press to tell the truth if it is in the public interest and has been obtained by legal means. I emphasise that “of interest to the public” is not the same as “of public interest”.
The feeling expressed eloquently by the Minister is that this is the wrong Bill for this amendment. Respecting the important work that has been done on the Bill and its crucial purpose in protecting us all, I do not intend to divide the House. I can hope and be reassured that the Government will show your Lordships’ House and procedural propriety equivalent respect by commencing laws that have received Royal Assent. I thank the Minister for his courteous response and thank many other noble Lords who have given me huge personal support and encouragement during this debate. I intend to return to this matter on a more suitable Bill in the future.
During the consultation period, I urge the Government to take note of the serious concerns expressed by your Lordships and to find a way to listen to the voices of ordinary people who will not have the resources at their disposal that will be deployed by big corporations. Discerning the truth should not be difficult; however, the loudest voices may not be the most valuable ones to listen to.
Lord Myners (CB)
My Lords, I am pleased that my noble friend has taken the stance she has. She speaks of the constituency who feel that they have been treated unfairly by the press. I think we all recognise that. However, there is another constituency—those of us who have benefited from the work of a strong, independent, investigative journalistic cadre. I speak as a former chairman of the Guardian newspaper. Many of the stories that the Guardian has covered, which I believe deeply are to the benefit of its readers and society, may not have been written in the way they were had Section 40 been activated.
I see what has been written about Sir Philip Green by Oliver Shah in the Sunday Times as an example of journalism that would have been chilled by the impact of this section. This section is a charter for the venomous and the vexatious, the pernicious and the provocative, the scurrilous and the spiteful. I am grateful and pleased that the Secretary of State for Culture, Media and Sport has launched a public consultation so that we can again look at the advisability of applying a presumption in favour of the claimant, which will simply encourage the worst of litigation without achieving the justice that so many in this House seek.
Lord Paddick (LD)
My Lords, I am very grateful to the Minister, who has in part repeated what he said the last time we considered these issues. I raise again my concern that this public consultation is not, as he describes it, a serious consultation. I explained last time that Cabinet Office guidelines—I appreciate there are no rules, laws or regulations about it—say that consultations should be for 12 weeks; this consultation is for 10 weeks. Consultations should not run over a holiday period; this consultation includes Christmas and new year. Why does it not follow Cabinet Office guidelines?
I do not share the concerns of the noble Lord, Lord Myners. Like the noble Baroness, Lady Hollins, I emphasise that the majority in this House voted for her original amendment, and I am sure it will not be long before this House has another opportunity to vote to force the Government to implement the provisions of the Crime and Courts Act 2013 that protect innocent victims from unreasonable and unnecessary press intrusion. The Government should know that we on these Benches will support such a vote.
Lord King of Bridgwater (Con)
My Lords, the noble Lord, Lord Paddick, said that a majority in this House supported the noble Baroness, Lady Hollins, in her amendment, but there is an even bigger majority in this House for ensuring that the Bill becomes law. We are now dealing with a very serious threat, a very serious situation, in which the provisions in the Investigatory Powers Bill are important. As your Lordships know, if the Bill does not make progress now, with the sunset clause on the present arrangements we would be naked in having no provision in law to govern the working of investigatory powers. There is absolutely no doubt that the noble Baroness has done the right thing. We could not possibly go on with this and provoke that risk at this time. Whatever the merits of these amendments—and I have not gone deeply into their merits—there is no doubt that I speak for the overwhelming majority in this House when I say that the Bill has got to become an Act soon so that we have proper provisions in place to defend our country and our citizens against the risks they might otherwise face.
Lord Mackay of Clashfern (Con)
I express my gratitude for the responsible attitude the noble Baroness has taken in this respect. I know how deeply she feels about the amendment she put forward. Of course, there is good journalism and less good journalism. I am glad to see the noble Lord, Lord Myners, in his place. It is possible to distinguish between what he was talking about and the feeling in respect of Section 40. I particularly want to emphasise the Minister’s words—that this is to be a genuine consultation; in other words, I take it that the Government have not yet made up their mind on this question and therefore, it will be worth while for anyone who has a point of view to express it. Even though the consultation period is slightly shorter than before, it is over Christmas and the New Year, which is perhaps the best time to generate good feelings.
Lord Rosser (Lab)
I congratulate the noble Baroness, Lady Hollins, on pressing this issue over a lengthy period with such determination and vigour. I ought to set out our position. There is inevitably a strong feeling that the Government are seeking a means to go back on the cross-party agreement, the undertakings given to victims and their commitment to implement Section 40 of the Crime and Courts Act 2013. In the Commons yesterday, the Solicitor-General rather gave the game away when he said that the consultation will ask whether Section 40 should be fully commenced, repealed or kept under review. Many fear that the consultation will prove to be a sham. Governments do not suddenly decide to hold a consultation on repealing recent legislation that has not yet been implemented unless that is something they would be happy to do. I suggest that the Minister knows that only too well. I suspect he may well choose to deny that, but the proof of the pudding will be in the outcome of this hastily organised consultation.
The question today is about the stance to take on the Government’s Motion. The noble Baroness, Lady Hollins, has indicated her position—at least, the Minister has done it for her—and it is one with which we agree. Two matters in particular need to be considered. One is the impact on the progress of the Bill. In our most recent discussion of this issue, the Government sought to argue that carrying the amendments concerned could place national security at risk, because it would delay the implementation of the Bill when there is a deadline, in a few weeks’ time, by which it needs to be passed. However, the Government destroyed their argument about a risk to national security by taking longer than they needed over scheduling consideration of our amendments in the Commons. If the Government seriously thought that national security was being put at risk, they would have had the Lords’ amendments considered by the Commons much sooner than they did. However, we are now that much closer to the deadline. Since we support the Bill we do not wish to start raising credible doubts over whether it will become an Act within the required timescale.
The second matter concerns the role of this House. This is usually described as inviting the Commons, the elected House, where deemed appropriate, to think again about aspects of or gaps in proposed legislation. We have done that twice in respect of the issue we are considering again today, and the Commons has twice declined to accept our view. This House has carried out its role and its responsibility.
In view of that, while we will continue to pursue this matter and the Government’s actions, like the noble Baroness, Lady Hollins, we do not believe that we should continue to do so through the medium of insisting on the amendments to the Bill that have previously been carried.
Earl Howe
My Lords, I am grateful for the contributions made from all quarters of the House. I will comment briefly on the consultation.
The consultation is a serious effort to canvas opinion. This is a difficult issue. There is no consensus around Section 40 implementation. We want to find a model for self-regulation that has broad support and works in practice. As well as having a responsibility to the victims, the Government have a responsibility to make sure that we have, as the noble Lord, Lord Myners, has correctly put it, a vibrant and sustainable press, particularly at the local level. We want to gather the evidence through a proper process, better to understand the potential impacts and explore options for next steps.
I and the Government believe that a consultation period of 10 weeks is appropriate and right. This is enough time to enable those who want to comment to do so, and we look forward to that process commencing.
Royal Assent
Tuesday 29th November 2016
(8 years, 2 months ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)