Investigatory Powers Bill (Tenth sitting)

(Limited Text - Ministerial Extracts only)

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Hon. Members]

Hear, hear.

[The Solicitor General (Robert Buckland)]

On a point of order, Mr Owen. May I add my remarks to yours? We wish my hon. Friend well and hope that he has a swift recovery from his operation.

Clause 109

Implementation of warrants

[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

I beg to move amendment 293, in clause 109, page 87, line 39, leave out subsection (3).

This amendment would remove the provision which allows a targeted equipment interference warrant to be served on a person outside the UK for the purpose of requiring that person to take action outside the UK.

--- Later in debate ---

[Keir Starmer (Holborn and St Pancras) (Lab)]

I will be brief. Members will have observed that the amendments in my name are in keeping with my previous amendments about implementation, service and extraterritoriality in relation to other warrants. I will not repeat the points I made then. The only one that is different is amendment 646, a simple proposed change to clause 109 that would add the provision:

“A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

I think that may be implicit. If the Minister could indicate that that is his understanding, that might allay concerns and the amendment would not need to be pressed.

[The Minister for Security (Mr John Hayes)]

As the hon. and learned Gentleman says, we have been down this road before. I well recall discussing similar amendments to the targeted interception provisions in part 2. The Bill maintains the existing position in relation to extraterritorial jurisdiction and those obligations that apply to overseas companies. I am unhesitating in my view that overseas companies, because of their important role in communications, must do their bit to do the right thing, as I said previously and memorably. As a result, I will not tire the Committee by going into that argument in great detail.

Amendment 293 to clause 109 seeks to remove the ability to serve a warrant on an overseas provider and amendment 645 seeks to remove the ability to serve a warrant on an overseas provider when a mutual legal assistance agreement is in place. I draw the Committee’s attention once again to David Anderson’s comments in his report, in paragraph 11.26:

“There is little dispute that the MLAT route is currently ineffective.”

I will not quote it at length but he goes on to say that it is because it is too slow and so on. I do not think that those amendments are in line with either his view or mine.

The effect of accepting the first amendment is evident. It would mean we could serve an equipment interference warrant only on a provider based in the UK. The second amendment seeks to assert mutual legal assistance arrangements as the only route. For the reasons I have already given, that is not appropriate.

The hon. and learned Gentleman asked, in the context of his amendment, whether that matter was implicit. Yes, it is implicit and I can confirm what he thought might be the case.

The arguments have already been made and, on careful reconsideration, the hon. Member for Paisley and Renfrewshire North will realise that his amendment and argument are pseudodox and will withdraw on that basis.

[Gavin Newlands]

I thank the Minister for that response and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

Division 31

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 109 ordered to stand part of the Bill.

--- Later in debate ---

Division 32

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 110 ordered to stand part of the Bill.

--- Later in debate ---

[Gavin Newlands]

I can deal with this in fairly short order. The Scottish National party tabled an amendment to leave out the clause, which places a duty on telecoms operators to assist with the implementation of equipment interference warrants. We agree with those in the industry who are rightly concerned about being forced by the state to engage in the legal hacking of customers and other individuals and groups.

The Bill defines a telecoms operator as

“a person who…offers or provides a telecommunications service to persons in the United Kingdom, or…controls or provides a telecommunication system which is (wholly or partly)…in the United Kingdom, or…controlled from the United Kingdom.”

That flexible and all-encompassing definition means that not only online companies such as Google, Facebook, Twitter, Dropbox and Yahoo!, but private offices, businesses, law firms, the networks of Departments such as the NHS and institutional networks such as those of universities would be forced to comply with the Government’s instructions to interfere with or hack the communications of an individual or group. That was confirmed by the Home Secretary in her evidence to the Joint Committee that scrutinised the draft Bill. That power will place those companies, whose services most, if not all, of our constituents use, in a deeply unsettling and invidious position.

I am not convinced that any of our constituents would be pleased to hear that we were passing legislation that would allow their email accounts or Facebook pages to engage in illegal hacking on behalf of the state. The extraordinarily expansive power that the clause gives the Government will force companies to engage in highly controversial work on their behalf, which will no doubt be in conflict with the interests of cybersecurity and product security that the companies work hard to innovate in, protect and extend. Forcing these companies to engage in legal hacking could seriously harm their business and operations. It will also lead to some of their customers and users losing trust in their businesses. I am not surprised that companies have long expressed deep concern about the powers laid out in the clause, as it is in direct conflict with their business interests. For those reasons, the SNP would like to see the clause deleted from the Bill.

[Mr Hayes]

I have nothing to add.

Question put, That the clause stand part of the Bill.

Division 33

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 111 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I have listened carefully to the hon. Gentleman’s comments. On the sharing of information with authorities that may engage in torture or other serious ill-treatment, can the Minister confirm the long-standing practice that our security and intelligence services do not share information where there is a risk of torture, because of their obligations under other international treaties, and that this provision sits within that framework of assurances?

[Mr Hayes]

I can confirm that, and I can say a little more. My residual generosity is such that I take the view that these amendments are well intentioned, but they are unnecessary. Let me say why.

Clause 113 already provides that the Secretary of State must ensure that satisfactory and equivalent handling arrangements are in place before sharing UK equipment interference material with an overseas authority. The Secretary of State must determine that they provide corresponding satisfactory protections. Furthermore, those obligations sit alongside those in, for example, the consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees, as well as the gateway provisions that allow for intelligence sharing in the Intelligence Services Act 1994 and the Security Service Act 1989.

In addition, the overseas security and justice assistance guidance provides an overarching mechanism that sets out which human rights and international humanitarian law risks should be considered prior to providing justice or security sector assistance. This is supplemented by the draft code of practice on equipment interference, which is clear about the safeguards on the handling of information. It seems to me that the protections, absolutely necessary though they are, are comprehensively dealt with by that variety of means, rendering the amendment unnecessary. I invite the hon. Gentleman to withdraw it.

[Gavin Newlands]

I thank the Minister for his comments, and I am somewhat reassured, but I still do not understand the Government’s reticence about putting this in the Bill; it is only a sentence that is required. Nevertheless, we are minded to withdraw the amendment at this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 ordered to stand part of the Bill.

Clause 114

Duty not to make unauthorised disclosures

--- Later in debate ---

[Keir Starmer]

I will deal with these amendments swiftly. They deal with the reasonable excuse defence and are similar to previous amendments. I foreshadow the amendments to clause 116, which essentially relates to the same issue as clause 114. Those amendments are about a public interest defence, which we have also debated already.

My two points remain. The first is the consistency of the reasonable excuse defence. In some clauses it is there and in others it is not, and I cannot see the logic of when it is in and when it is out. Secondly, the Minister has already agreed that there must be a route for those who want to expose wrongdoing, so that disclosures can be made in the public interest where necessary. I have been pursuing those two points, and they are the same for this provision. I do not need to elaborate further.

[The Solicitor General (Robert Buckland)]

The hon. and learned Gentleman is absolutely right to refer to arguments previously made. For the record, this morning I omitted to pay my own tribute to our sovereign lady on her 90th birthday, and I wish to add it here. I am sure that colleagues will indulge that observation, and hopefully this next observation too. My right hon. Friend the Minister for Security and I agree that the world is divided between cavaliers and roundheads. We know what side we are on: our hearts lie broken on the battlefield of Naseby—but that is perhaps for another day.

We contend that amendment 650 is unnecessary. Clause 115(2)(b) provides that a disclosure is permitted if it is

“authorised by the person to whom the warrant is…addressed”.

Disclosure can also be authorised by virtue of this clause within the terms of the warrant, which will have been agreed by the person issuing the warrant and by a judicial commissioner. It is much better for an impartial senior judge to take a view on what is reasonable than it is for, say, a junior official or an employee of a telecommunications operator, no matter how diligent they might be; none the less, it is important that such people can raise concerns without fear of prosecution. That is why clause 203, in part 8, provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill.

It is right that the Bill’s provisions reflect the sensitive techniques of the equipment interference agencies and maintain that it will be an offence to disclose the existence of a warrant. It is a well known and well rehearsed argument that the techniques and details of EI capabilities must be protected. The amendments in the round seek to achieve something that I submit is already well catered for in the Bill, and on that basis I ask the hon. and learned Gentleman to withdraw the amendment.

--- Later in debate ---

[Gavin Newlands]

I will not detain the Committee long. I hear what the hon. and learned Gentleman says and broadly agree with it. I rise merely to point out the differences between the two amendments before us. The SNP’s amendment would insert an additional subsection that adds the additional defence and leaves subsection (3) in, whereas the Labour amendment removes that.

[The Solicitor General]

I am grateful to the hon. and learned Member for Holborn and St Pancras. We are familiar with the arguments and our response is that the information gateway, which allows people to take concerns directly to the Investigatory Powers Commissioner, caters for the public interest. For that reason I urge him to withdraw the amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 116 ordered to stand part of the Bill.

Clauses 117 and 118 ordered to stand part of the Bill.

Clause 119

Bulk interception warrants

--- Later in debate ---

[Joanna Cherry]

Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.

I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:

“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”

The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.

[Mr Hayes]

I know that this will disappoint the Committee, but I shall try to reduce the length of my peroration by making two things clear by way of an intervention. First, David Anderson was clear in evidence to this Committee that further review was not necessary. Actually, I am not unpersuaded by the argument for some process, although the hon. and learned Lady is doing a good job of changing my mind. Secondly, the Joint Committee was extremely clear that we would benefit from the ISC’s conclusions, and the ISC said that the powers are necessary, so I do not understand on which journey the hon. Lady is travelling, or to which destination.

[Joanna Cherry]

David Anderson said the following in paragraph 1.12 of his report, “A Question of Trust”:

“Though I seek to place the debate in a legal context, it is not part of my role to offer a legal opinion (for example, as to whether the bulk collection of data as practised by GCHQ is proportionate). A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.”

There we have the words of the man himself. Although David Anderson seeks to place the debate in a legal context, he does not see it as part of his role to offer a legal opinion on the proportionality of GCHQ’s bulk collection of data. At least two cases now before the courts will result in judgments on whether the powers are proportionate.

[Joanna Cherry]

Indeed; he is putting forward recommendations. I am advocating an independent review looking at the operational case for bulk powers. It would look at whether the powers are necessary and proportionate, and it would provide an opinion that could then be laid before both Houses, for us to see if the Government’s case has been made. I am concerned that the case is not sufficient at the moment. I say that against the background not of Mr Binney’s evidence, but of the findings of high-level USA investigatory bodies.

[Mr Hayes]

I hesitate to advise an advocate on the construction of her argument, but the hon. and learned Lady would do better not to cite David Anderson and pray him in aid, because he told this Committee on 24 March that he was

“not persuaded of the case for”

an additional independent review of bulk powers, as

“it would be very difficult to say that the ISC had not had an independent look at these issues.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 6, Q2.]

The quote from David Anderson that she is using comes from the very beginning of his report, in which he sets out his general approach to his work. In an effort to make her an even more accomplished advocate than she already is, my advice would be to drop Anderson from her argument.

[Joanna Cherry]

With all due respect, hon. Members sitting behind the Minister brought up David Anderson; I made it clear that I accepted that David Anderson had reached a different view from mine on bulk powers, but I read from his report to make the point that at an early stage in it, he says that it is not his objective to give a legal opinion on the legality of the bulk collection of data.

Those of us who sat through David Anderson’s evidence in Committee on 24 March might also remember that he discussed the different views held about the legality of bulk powers. He said that, ultimately, that will be determined by the courts. The thrust of my argument is that given the serious concerns expressed by two independent United States committees, and the serious concerns about the legality of the powers, we should not be gung-ho about putting them in legislation until we have a proper operational case and have seen the outcome of the litigation. That is a thoroughly respectable approach to part 6, and one that is in accordance with the rule of law.

--- Later in debate ---

[Joanna Cherry]

I will not recast it. I gave very detailed reasons on Second Reading as to why I felt that the Bill was not being given sufficient time. I am aware that hon. Members may feel that I have held the floor for too long; I have spoken at some length, but this is hugely important. Many people across these islands are very concerned about this part of the Bill—ordinary citizens, corporate entities—and we are not giving it enough time. There is not enough time to discuss its detail. I have taken up about 40 minutes giving just an overview of why I oppose part 6. I could have a go at every clause, but I will not do that, because we would be here forever and we have limited time, so I will draw my comments to a conclusion. The Scottish National party’s position is that each and every clause of part 6 should come out of the Bill until such time as there has been a proper independent review and a proper operational case has been made for these powers.

[Mr Hayes]

The hon. and learned Member for Holborn and St Pancras, who speaks for the official Opposition, spoke, not untypically, with welcome brevity and a palpable understanding of these issues, but the hon. and leaned Lady took us on a seemingly interminable journey to a place that is somewhere between intuitive hostility to these powers and confusion—a murky place that I do not want to spent too much time in. Some of the things she said warrant a response, because it seems to me that they were founded on a misunderstanding— I put that as generously as I can—of the use of the powers, their purpose and the safeguards that pertain in that regard.

Let me be clear: a Google search by a person in the UK is not overseas-related. Clause 119 deals with overseas-related communications. Warrants must be targeted at overseas communications. That will provide strong protections for people on these islands.

The ISC privacy and security report concluded that it is unlawful for GCHQ to conduct indiscriminate interception. It is also impractical for it to do so. The hon. and leaned Lady must understand, as most members of this Committee do, that it would be impossible, undesirable and unnecessary for GCHQ to deal with all but a fraction of internet communications. The peculiar view that somehow those missioned to keep us safe are interested in a whole range of communications that bear no relation whatever to their task is—again, I am trying to measure my words carefully—unusual. I say that because it is certainly not the view of the vast majority of people in this country, who want those so missioned to have the powers necessary to guard us against very real threats.

The hon. and leaned Lady spoke, quoting the hon. and learned Member for Holborn and St Pancras, of breathtaking powers. I shall come to that in a moment. She needs to understand that the threats we face are equally—actually, I would say far more—breathtaking. Unless we equip those in the security and intelligence services and the law enforcement agencies with what they need to do their job, we will pay a very dear price indeed. That is what bulk powers are about.

The collection of large volumes of information through bulk powers and the use of those data are essential. Of course they have to be filtered, and search criteria must be applied, so that fragments of intelligence can be gathered and pieced together during the course of an investigation. This is, in essence, about establishing patterns of behaviour and confirming networks. That is what GCHQ is about. Unless we collect those large volumes of information, we cannot move to the targeted regime that the hon. and leaned Lady seeks. Through a mix of misunderstanding and misjudgment, she is making an unhelpful case to those of us who want the safeguards to be as sure and certain as they need to be; I entirely take the point about “need”.

--- Later in debate ---

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I am about to sit down, so I will not give way. Perhaps the hon. Lady will forgive me. My endurance has been tested to its limit.

[The Chair]

Will respect, I think you have to give way, given what you have said.

--- Later in debate ---

[Mr Hayes]

I will say this. The Bill has been through an exhaustive process of consideration. The draft Bill was preceded by three reports on the basis of which—the hon. and learned Member for Holborn and St Pancras drew attention to this—the Government have gone further than originally set out, in the terms I described with publication of more information, explanation of the operational case and amendments to the codes of practice. The Bill was considered by three Committees of this House and I have referred to the Joint Committee’s views on bulk powers.

This Committee is now considering the Bill following publication in its final form on Second Reading. In the Second Reading debate the Chairman of the Intelligence and Security Committee, a senior Member of this House who chairs a very important Committee, said that he was convinced that these powers were necessary. The hon. and learned Member for Holborn and St Pancras has argued for perhaps going further on the operational case.

[Simon Hoare]

Will my right hon. Friend give way?

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I will just finish my sentence. I do not think anyone can say there has not been adequate debate about bulk powers. Before I give way to my hon. Friend and then the hon. Lady—I do not wish to put a further spoke in her wheel, or perhaps I do—I want to say that the US National Academy of Sciences could not identify any alternative that is appropriate to bulk powers.

[Simon Hoare]

I just want to put it on the record that I am sure my right hon. Friend shares my view that if the former Attorney General, our right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who chairs the Committee to which the Minister referred, had not been convinced, he would have had no problem whatever in telling the Government and anyone who wanted to listen that he was not convinced. Our right hon. Friend is not a patsy in this matter or a yea-sayer. If he disagreed, he would have told us.

[Mr Hayes]

Let me quote our right hon. and learned Friend. He said:

“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]

He said that on the basis of the information provided to him, but in the knowledge that robust safeguards will govern the examination of data that have been collected in bulk and that it will be possible to select such data for examination only when it is necessary and proportionate for a specific operational purpose. What is happening in other places is, of course, of interest to us and of course we consider other jurisdictions, but my job is to listen to those who have examined the Bill with considerable diligence and in considerable detail, and to be guided by their conclusions.

In that spirit and with that purpose, I hope that we can move on to the next clause, having been persuaded, I hope, that what the Government are doing is perfectly reasonable.

--- Later in debate ---

[The Chair]

Order. This is an intervention. We have noted the source. I call the Minister to respond.

[Mr Hayes]

I see now my mission; it has come to me in a flash. Part of my job is to clear the murk surrounding the hon. and learned Lady and guide her to the light. To that end, she needs to understand that there is a distinction between the position under the Regulation of Investigatory Powers Act 2000 and the definition of overseas-related warrants relating to bulk powers in the Bill. To quote what Charles Farr, with whom I worked at the Home Office, said about one does not really relate to the other. I hope we can move forward on our journey to the light.

Question put, That the clause stand part of the Bill.

Division 34

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 119 ordered to stand part of the Bill.

--- Later in debate ---

Division 35

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 120 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.

The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.

What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.

Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider

“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data”

and then that

“the warrant is necessary…in the interests of national security,”

or on

“grounds falling within subsection (2)”

Subsection (2) adds that the warrant can be

“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

I will not test the Committee’s patience by going over the same ground about the economic wellbeing of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.

It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that

“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.

On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves

“a purpose for which…examination…under the warrant is or may be necessary”,

which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider

“each of the specified operational purposes”.

However, in clause 125(4), we get into a circular argument. It states:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,

the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or, “It is in our economic interests.” That is not enough,

“but the purposes may still be general purposes.”

That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.

In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:

“Each application, a copy of which must be retained by the applicant, should contain the following information:

Background to the operation in question:

Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…

Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…

The operational purposes for which the content and secondary data may be selected”.

What is envisaged in the code includes:

“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary”

under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:

“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”

So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).

[The Solicitor General]

I have been considering the hon. and learned Gentleman’s point about clause 125. Let me reassure him that the purpose of subsection (4) is to create, in the modern phrase, a greater granularity of approach when it comes to the basis of the application. That provision is in the Bill to prevent the authorities from just relying on generalities; the point is for them to go into greater specificity. I hope that gives the hon. and learned Gentleman some reassurance.

[Keir Starmer]

I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.

Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.

[Mr Hayes]

The spirit that the hon. and learned Gentleman describes is right. It is important that we specify the reasons for the use of these powers, as well as looking at specific operational cases in the way he set out in an earlier debate. The difference between us boils down to this: should that requirement be in the Bill or in the codes of practice? He has drawn attention to codes of practice, which are clear. He might also want to take a look at the operational case for bulk powers, paragraph 6.13 of which gives examples of operational purposes. They might include counter-terrorism operations to detect and disrupt threats to the UK, counter-terrorism operations to detect and disrupt threats overseas, cyber-defence operations, serious crime, security of agencies’ and allies’ operational capability, or security assurance to provide security awareness to the Government, members of the armed forces, Departments and so on. Therefore, there is more detail about what the purposes might be and why these powers are necessary. The hon. and learned Gentleman is right to say that there is more coverage of that in the draft codes of practice, so the discussion we are having is not about the spirit—I think he is right about that, as I said—but about where the details should be specified.

--- Later in debate ---

[Keir Starmer]

I listened carefully to what the Minister said. In the end, this comes back to a debate we have touched on a number of times in this Committee. I hope we have been clear and consistent in the view that safeguards should be set out in the Bill. The code of practice is the proper place for the detailed implementation and guidance on those safeguards. Therefore, for the same reason as in our previous debate, I wish to press the amendment to a vote.

[Mr Hayes]

Before the hon. and learned Gentleman does so, I might be able to dissuade him. I am not against what he said as a principle. Of course, it has to be gauged on a part-by-part basis, but the principle he has just outlined seems pretty persuasive to me. I will talk about it with my colleagues and my officials. He makes an interesting distinction between safeguards and other technical matters of the kind Anderson describes, and I am not unpersuaded by that.

[Keir Starmer]

I am grateful for that intervention, which was persuasive. Rather than pressing the amendment to a vote that I am not confident we would carry, I would rather continue dialogue that may lead to a changed approach, in whatever form, to how safeguards are dealt with in the Bill and the codes. I will say no more than that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 36

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 121 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 661, in clause 122, page 98, line 44, at end insert—

‘(4) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an information sharing treaty”.

I am sure it will be to the relief of many Committee members if I indicate that I anticipate that we will now move at greater speed, because each of the bulk powers sits within a framework of safeguards that is similar throughout the Bill. The amendment deals with warrants affecting overseas operators. We have rehearsed the arguments either way on more than one occasion, so I do not intend to repeat them.

[Mr Hayes]

The hon. and learned Gentleman’s brevity is matched by the Minister’s determination to move with alacrity. I, too, have made my arguments known so, like him, I have no wish to repeat them.

--- Later in debate ---

Division 37

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 122 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

The amendments are in a familiar form as they are the same as the amendments I have tabled for all the clauses that deal with the approval of warrants by judicial commissioners. The arguments are the same so I shall not rehearse them, save to say that we are moving to a different kind of warrant—a bulk warrant—and where the power is now avowed and the safeguards are being put in place, it is particularly important that the judicial commissioners’ scrutiny is tight. The amendments would provide that tight scrutiny.

Nevertheless, I am not going to persuade anybody who is yet unpersuaded by repeating the arguments. They are essentially the same and they have been consistent throughout the Bill. If there is to be any change on the judicial test, it needs to be consistent throughout the Bill, one way or another.

[Mr Hayes]

We have had this debate before. It is essentially about the authorisation process, the role of the judicial commissioner and the basis on which the judicial commissioner exercises judgment. Should we make further progress on reaching a synthesis on that matter, it will apply across the Bill, as the hon. and learned Gentleman has said. On that basis, I have nothing more to add.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 38

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 123 ordered to stand part of the Bill.

--- Later in debate ---

Division 39

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 124 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

Amendment 664 is very simple and straightforward. In the light of our exchange, I would simply like to put it on the table, as it were, to show the spirit in which it has been introduced. I will not press it to a vote, because this is a matter that we may be able to discuss further.

[The Solicitor General]

The hon. and learned Gentleman remembers the intervention I made earlier to help short-circuit it. We think it conveys that granularity, but we are prepared to engage in ongoing dialogue on that issue. I am grateful to him.

Amendment 665 would require that bulk interception warrants “must” specify all operational purposes. In the Government’s drafting, the word is “may”. I am sympathetic to the amendment, but I do not think it is necessary. The purpose of the clause is simply to clarify that a bulk interception warrant may include multiple operational purposes. That is necessary because overseas-related communications, which are relevant to multiple operational purposes, will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes in use at a particular time. I submit that the Bill is sufficiently clear on that point without the amendment. On that basis, I invite the hon. and leaned Gentleman to withdraw it.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 40

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 125 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I will not take time with this amendment. We have been round the block with durational warrants on more than one occasion. It is the same issue of whether the warrants should run for six months or a shorter period. I have made my position clear, as, in fairness, have the Government. I do not intend to press the amendment to a vote.

[Mr Hayes]

I have nothing to add to what the hon. and learned Gentleman has said; I think we have been round the block and the arguments are well rehearsed.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

Division 41

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 126 ordered to stand part of the Bill.

--- Later in debate ---

Division 42

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 127 ordered to stand part of the Bill.

Modification of warrants

[Mr Hayes]

I beg to move amendment 610, in clause 128, page 101, line 24, after “requires” insert “(to the extent that it did so previously)”.

This amendment makes a minor drafting clarification (to address the case where, before its modification by virtue of clause 128(2)(b), a bulk interception warrant authorised or required only one of the activities mentioned in that provision).

This is a technical amendment; it is self-explanatory. Obviously, if any colleague wants me to explain it, I will, but I think that for the sake of brevity I will leave it at that.

Amendment 610 agreed to.

[Keir Starmer]

I beg to move amendment 667, in clause 128, page 101, line 39, at end insert—

“(c) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.”

[Keir Starmer]

These are familiar amendments to the familiar modification clause, which is similar to the other modification clauses. They are intended to serve the same purpose, which is to clarify, tighten, better define and regulate the modification process.

In light of the ongoing discussions about modifications in general, I take it that all the modification provisions come within the same further consideration that I know the Government are giving to modifications, and I will not say anything more about it. However, I cannot resist saying that subsection (6) perhaps gives an example of how one could achieve approval by judicial commissioners of all major modifications.

It is interesting that subsection (6) is markedly different to the provision in clause 30. In other words, some thought has been given by whoever drafted clause 128 to how one gets major modifications back through the judicial commissioner, but that was not a technique deployed in clause 30. I simply point that out because it perhaps gives further strength to my argument that that is the correct way of dealing with these modifications, not only in this clause but in all clauses, and to similar effect. However, as I have said, we have rehearsed these discussions and I will not add to them on modification.

[The Solicitor General]

I listened to the hon. and learned Gentleman’s last point with interest. He is right about our general approach to this area. What I would say in response to his proper analysis is that I think there are some technical deficiencies in the wording of amendments 667 and 685. I am just concerned that there is a lack of clarity, but that is part of what is ongoing. On that basis, I hear what he says and I am grateful to him.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 611, in clause 128, page 102, line 16, leave out “(urgent cases)”.

This amendment is consequential on amendment 612.

[The Chair]

With this it will be convenient to discuss the Government amendments 612, 617, 618, 622 and 623.

[Mr Hayes]

The amendments relate to major modifications to bulk interception, acquisition and equipment interference warrants, to add or vary operational purposes. In essence, they provide clarity, enabling an instrument making a major modification to a bulk warrant to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it. For example, the Secretary of State might be out of the country, working elsewhere or otherwise unavailable. Such a modification, however, must be personally and expressly authorised by the Secretary of State before the senior official may sign the instrument. We are talking about a practicality, rather than a difference of emphasis or authority. The amendment replicates accepted and understood language used in the Regulation of Investigatory Powers Act 2000. Hon. Members will understand that there may be occasions when the Secretary of State cannot actually sign the warrant and will delegate that to a senior official.

[Keir Starmer]

I do not stand in the way of the amendment, which I fully understand. To be clear, I think that the Minister said that the provision only applies when the Secretary of State has authorised the modification, but for whatever reason cannot actually sign it—being out of the country is an obvious example. Since the modification clauses may receive further attention, this may be dealt with anyway, but in the amendment I cannot see the provision that makes it clear that the Secretary of State will have authorised it, but that is probably my shortcoming rather than anything else. I understand the scheme and how it is supposed to work.

[Mr Hayes]

The principle remains the same—that the authorisation does not change. This is about the practicality of the signing of the warrant.

[Keir Starmer]

I am grateful. It is simply because I think we are in the territory where a senior official can make the modification, and therefore—

[Mr Hayes]

No. If the hon. and learned Gentleman looks at subsection (4)(a)—

“A major modification…must be made by the Secretary of State”—

he will see that the authority still rests with the Secretary of State.

--- Later in debate ---

Division 43

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 128, as amended, ordered to stand part of the Bill.

--- Later in debate ---

[The Solicitor General]

As the hon. and learned Gentleman’s arguments are the same, my arguments, as he anticipates, are the same. Bearing in mind the sensitive nature of these matters, we do not want decisions to be rushed and, accordingly, we resist the amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 44

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 129 ordered to stand part of the Bill.

--- Later in debate ---

Division 45

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 130 ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

These amendments deal with the implementation of warrants. The implementation scheme is similar to that for other warrants. The amendments, as with previous similar amendments, have been tabled to restrict the arrangements because of concerns raised by those who may be required to assist in the implementation of warrants. As the Committee will have observed, the amendments are of same type and species as those previously discussed in relation to implementation of warrants and, again, I will not repeat the arguments about them.

[Mr Hayes]

The Bill maintains the existing position in relation to extraterritorial jurisdiction and the obligations that apply to overseas companies. I have said before and I happily repeat that it is right that companies providing communications services to customers in the UK should comply with UK law. That remains our position. On that basis, I resist the amendments and invite their withdrawal.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[The Solicitor General]

Again, we note that the amendments are similar to previous amendments. We still say that they are unnecessary. The clauses already provide safeguards so that any bulk warrant may be implemented only to the extent required for the purpose for which the warrant was issued. For example, in relation to bulk interception in clause 119(4) and (5), a warrant may only authorise conduct that is described in the warrant or conduct that

“it is necessary to undertake in order to do what is expressly authorised or required by the warrant”.

That clearly sets out the scope of the authorised conduct. Well intentioned though the amendments are, we submit that they are unnecessary.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 46

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 131 ordered to stand part of the Bill.

--- Later in debate ---

Division 47

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 132 ordered to stand part of the Bill.

--- Later in debate ---

Division 48

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 133 ordered to stand part of the Bill.

Safeguards relating to examination of material

[Mr Hayes]

I beg to move amendment 613, in clause 134, page 106, line 31, leave out “any selection” and insert “the selection of any”

This amendment makes a minor drafting correction.

This is a minor drafting correction to the clause. It is self-explanatory.

Amendment 613 agreed to.

Question put, That the clause, as amended, stand part of the Bill.

Division 49

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 134, as amended, ordered to stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

These provisions deal with legal privilege, which we have dealt with on a number of occasions. I will not repeat the points I have made, but one concern I had about the previous clauses that dealt with legal privilege, among others, was that they distinguished between a situation in which the purpose was to obtain the legally privileged material and a situation in which the relevant communication likely to be included was subject to legal privilege. In other words, there was a situation in which the legally privileged material was deliberately targeted and a situation in which there was no intention deliberately to target legally privileged material, but it was accepted that what was targeted was likely to include such material.

In clause 25, the first time we looked at the matter, the distinction was important because the higher test in the Bill—exceptional and compelling circumstances—applied only to the situation in which legally privileged material was purposely targeted, and that test did not apply where it was not being targeted, but it might none the less be picked up because the items targeted would be likely to include material subject to legal privilege. I was uncomfortable with that distinction and I made my submissions at the time.

Curiously—this is understandable; it is not a criticism of different drafting hands in different parts of the Bill—when we get to clause 135, we have a version of the legal privilege provision that sets out in subsection (1)(b)(i) and (ii) both the purpose being to intercept or to obtain legally privileged material and the situation in which the use of the relevant criteria is likely to identify such items, so it sweeps up the targeted and the incidental, and then subjects both to the higher test.

For all the reasons I have set out, I do not think even that is enough, but when the Solicitor General looks again at all the provisions on legal privilege, I ask him to note that there is not even consistency through the statute, perhaps because it was differently drafted at different times. I cannot work out why under clause 25 incidental legally privileged material is not subject to the special test, but under clause 135 it is. I want to put that on the table and invite the Solicitor General to bear it in mind if he gives further consideration to how legally privileged material will be dealt with consistently through the Bill.

[The Solicitor General]

I thank the hon. and learned Gentleman for his remarks. First, we have the exceptional and compelling circumstances test in subsection (3)(b), which is consistent. Also, I think there is a slight misunderstanding about what we are dealing with, because the amendments seem to be predicated on the basis that targeted interception and equipment interference and then their bulk equivalents can be directly equated, but they cannot.

We have safeguards in place that we would say are strong. We are having a debate about that; I entirely concede that point. We are having a debate about items subject to legal profession privileges in circumstances where content collected under a bulk interception or equipment interference warrant is being selected for examination. That is the key stage. Before that, we are dealing with the stage of acquisition, not examination.

[Keir Starmer]

I am not sure that the Solicitor General is right; if he is, I apologise. This is a safeguard for a bulk warrant that allows for both gathering and access. In other words, the whole point—I go back to the beginning of part 6 of the Bill—is for a scheme that provides for the obtaining of interceptions on a bulk basis and their examination. They are dealt with in part 6. The warrants that are referred to would include an examination warrant.

[The Solicitor General]

May I correct myself? The hon. and learned Gentleman is right. I think I used the word “acquisition”. What I meant is that we are talking about when content collected under the terms of part 6, through an interception or equipment interference warrant, is being selected. The stage point about selection for examination is still important.

When content is being selected for examination for the purpose of identifying items subject to legal privilege, or selections such as under the distinction that we have discussed, clause 135, relating to the bulk interception provisions, is the relevant clause, together with clause 171, which deals with equipment interference provisions. That action requires approval from a senior official in the warrant granting department, only on the basis that they are satisfied that there are specific safeguards in place for the handling, retention, use and destruction of items that are subject to legal privilege. In addition, in circumstances when selection for examination is taking place for the purpose of identifying items subject to legal privilege, the senior official must be satisfied that the exceptional and compelling circumstances test that we have discussed is applicable. Furthermore, when an item that is subject to legal privilege is intercepted under a bulk interception warrant and is then retained following its examination, the investigatory powers commissioner must be informed of course.

My point about collection, and I think the hon. and learned Gentleman gets it, is that meaningful safeguards must be applied at that key point, because one does not know what one is getting. That is the wording, and that is why there is that difference in clause 135.

[Keir Starmer]

I intervene only to say that I accept that it is a necessary evil of bulk powers that otherwise protected information will come within the bulk power at the point of retention, for want of a better word. Safeguards for MPs, for journalists and their sources, for constituents and for clients bite at the later examination or access point.

[The Solicitor General]

I am extremely grateful to the hon. and learned Gentleman. A lot of the material that is collected will never be examined. The key point is the next stage.

Briefly, the other amendments relate to the arguments about legal professional privilege, and the question whether there are circumstances in which material would not be covered by the iniquity exemption but would be of interest. We have discussed that point before, and I draw my remarks to a close on the same terms that we have discussed previously.

[Keir Starmer]

In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

Division 50

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 135 ordered to stand part of the Bill.

--- Later in debate ---

Division 51

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 136 ordered to stand part of the Bill.

--- Later in debate ---

Division 52

Ayes: 9

---

Conservative: 8

Noes: 2

---

Scottish National Party: 2

Clause 137 ordered to stand part of the Bill.