Investigatory Powers Bill (Third sitting)
Tuesday 12th April 2016
(8 years, 9 months ago)
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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, 9 months ago)
Public Bill CommitteesRead Full debate Read 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.